Local and Italian businessmen are vying for the industrial design of Alpenliebe candies. The issue stems from the similarity between the Lollyball candy design and the Lollipop candy design.

 

Usually, Indonesian businessmen are sued by foreign companies regarding intellectual property rights. This time, it's the other way around. Indonesian businessman Agus Susanto has filed a lawsuit to cancel the industrial design of Perfetti Van Melle S.P.A. The Italian company is the producer of Lollipop candies branded as Alpenliebe. Meanwhile, Agus is the producer of Lollyball candies branded as Yoko.

 

Agus filed the lawsuit at the Central Jakarta Commercial Court in early July. The trial for case No. 42/Industrial Design/2009/PN.NIAGA.JKT.PST has entered its final stage. The panel of judges, chaired by Sugeng Riyono, will soon make a decision on Monday (14/12), two weeks from now.

 

The issue stems from the similarity between the Lollyball candy design and the Lollipop candy design. Perfetti Van Melle's Industrial Design is registered under certificate No. ID 004058 dated January 8, 2003, with the title Lollipops.

 

According to Agus's legal counsel from Pieter Talaway & Associates, the similarity lies in the shape and configuration. Unfortunately, the lawsuit does not specify the differences in detail. This similarity could mislead the public about the origin or source of Agus's and Perfetti Van Melle's products, thus violating Article 4 of Law No. 31 of 2001 concerning Industrial Design.

 

The industrial design of Alpenliebe candies is considered to lack novelty. Therefore, in the lawsuit's petition, Agus requests the panel of judges to cancel Perfetti Van Melle's industrial design. This is because before Perfetti Van Melle registered the industrial design of Alpenliebe candies, the design configuration was already widely circulated (public domain). Perfetti Van Melle is considered to have acted in bad faith in registering the industrial design.

 

Agus himself has been producing Yoko candies since 1999. He also obtained a trademark certificate No. 460924 on January 5, 2001. This was later extended with certificate No. IDM 000194839.

 

Unfounded

Perfetti Van Melle's legal counsel from Soemadipraja & Taher stated that Agus's lawsuit is unfounded. This is because Agus has never registered the Lollyball industrial design, thus he does not have exclusive rights to the Lollyball candy design. Furthermore, he cannot prohibit others from using designs that resemble the Lollyball candy design.

 

In fact, the design labels of Lollipops and Lollyball candies are also different. The Lollyball candy's industrial design label has various graphic elements. Additionally, the candy product design has lines on its surface. Meanwhile, the surface of Lollipops candies has lines with alternative color variations. These lines also vary, some are horizontal, diagonal from left to right or vice versa, and/or irregular/varied.

 

In the industrial design legal regime, the concept of similarity or substantial resemblance is not recognized within the concept of industrial design protection in Indonesia. The Directorate General of Intellectual Property Rights of the Ministry of Law and Human Rights issuing an industrial design certificate for Perfetti Van Melle's product indicates that the industrial design registration is not problematic. It does not violate laws and regulations, public order, religion, or morality.

 

The registration of Perfetti Van Melle's industrial design certificate has undergone examination stages, both administrative and substantive, and has been published. During the publication period, there were no objections filed against the applicant for the published industrial design.

 

Perfetti Van Melle's legal counsel believes it is unlikely that the Italian company would jeopardize its reputation by copying candy designs from other producers.

 

Source: hukumonline.com