By: Ichwan Anggawirya, S.Sn., S.H., M.H.

 

A trademark is a commercial identity for both goods and services that grants exclusive rights to the registered trademark owner. This exclusive right is what gives a trademark value because it empowers the owner to prohibit others from using the trademark without their permission, thus allowing the owner to monopolize the market for that trademark.

 

With these exclusive rights, in addition to the right to prohibit, trademark owners also have the freedom for creative development of their brands. Besides the main trademark, several trademark elements fall within the definition of a trademark and deserve protection under trademark law, including:

 

1. Variant Trademarks, variant trademarks are trademarks that accompany the main trademark, usually used for market segmentation strategies. Examples of variant trademarks are AVANZA, INNOVA, CAMRY, which are variant trademarks of TOYOTA. Using variant trademarks is a suitable strategy to control various market segments without confusing the perception of the main brand. Market segments can be divided based on social strata, gender, age, etc.

 

2. Type Names, the definition is almost similar to variant trademarks, but type names are more often used to differentiate the characteristics or specifications of similar products. For example, with the TOYOTA CAMRY brand, after using variant trademarks to differentiate market segments, they are further distinguished by type names to differentiate the specifications of each product with additions like Hybrid or Hybrid Synergy Drive, which are registered as trademarks and claimed by TOYOTA as its patented invention. However, if a type name uses a descriptive word for the goods, it will not receive protection (disclaimer).

 

3. Slogans or Taglines, are short, creative phrases used to reinforce product positioning. Many have asked the author about the scope of protection for taglines. Since taglines meet the definition of a trademark as a distinguishing element, taglines can be registered under trademark law. Be careful when "creating" tagline phrases, as common phrases or those that merely describe the product cannot be registered. For example, a creative tagline that can be registered is "Terus Terang Philips Terang Terus" (Philips Brightness Continues to Shine), which is an uncommon, creative phrase. It's different from a phrase like "Philips Lampu Yang Selalu Terang" (Philips, the Always Bright Lamp), which is not creative and merely describes the product.

 

4. Product Packaging, many mistakenly believe product packaging design is protected under Industrial Design law. The author actually suggests that product packaging design should also be protected under trademark law because it also meets the definition of a trademark. Furthermore, the new trademark law has included 3-dimensional trademarks, meaning both 2-dimensional and 3-dimensional product packaging designs can be protected under trademark law. Therefore, don't just protect the brand name; distinctive packaging features also need protection to maintain exclusivity and consumer perception in the market. If there are inventions in packaging technology, they should also be protected under patent law.

 

5. Logos, the visual appearance of a logo is generally integrated with the brand name, but sometimes, as part of a specific strategy, only the visual image is registered without the brand name. Under the old Copyright Law No. 19 of 2002, logos could also be protected under copyright law, but under the new Copyright Law, logos can only be registered under trademark law. In the author's opinion, this will lead to many controversies in creative works.

 

6. Sounds or Jingles, according to the new trademark law No. 20 of 2016, sound elements have been included in the definition of a trademark. Therefore, jingles or sounds used as brand identity should be registered, for example, the Ice Cream Walls jingle or the characteristic sounds of certain gadgets.

 

7. Holograms, are visual displays that present light effects in 2 or 3 dimensions, known as holographic effects or viewpoint-changing effects, which require a description of how the changes occur and how many image changes there are. Generally, holograms are used for security printing purposes.

 

This is a brief overview of trademark elements that deserve protection. In the next article, the author will discuss the effectiveness of trademarks in terms of strategy for building and maintaining perception, as well as their legal aspects. Enjoy reading.

 

The author is a Trademark and Intellectual Property Consultant, Founder & CEO of INDOTRADEMARK