First Come, First Served
    Category: Column By : Taufik Darusman Read : 664 Date : Thursday, October 13, 2016 - 13:21:32

    For over half a century Pierre Cardin has had a love affair of sorts with Asia. In 1966 the iconic fashion designer introduced stylish uniforms for Pakistan International Airlines. Five years later, he redesigned the Barong Tagalog, the national costume of the Philippines. Much earlier, in 1959, he had travelled to Japan and showered praise on its high fashion.

     Now, at 94, his affinity with Asia is turning sour in, of all places, Indonesia. For the Supreme Court (MA) last month rejected a lawsuit filed by Cardin against the Jakarta businessman Alexander Satryo Wibowo, who has been using the Pierre Cardin brand for similar products from the designer. MA based its decision on the “first to file” principle in intellectual property rights law.

    Cardin’s lawyer pointed out that Pierre Cardin was a world-recognized brand and is registered worldwide, including in Indonesia. MA was not impressed, noting Wibowo had already registered the brand in Indonesia, in 1977, while Cardin did so only in 1999.

    To be sure, one of the three-member panel of judges dissented. From an ethical and moral standpoint, he argued, favoring Wibowo simply because he had been the first to use the brand cannot be justified. Furthermore, the judge dismissed the defendant as someone of “bad faith who had piggybanked on the fame of the original brand name.” He also noted the plaintiff is registered in his country of origin as well as other countries for decades, and as such the defendant’s actions violated the law.

    The intellectual property rights law recognizes two principles of brand name registration, the “first to use” and “first to file.” The former legally protects whoever first uses the brand while the latter covers the party registering the brand first.

    In fairness, a Ministry of Justice and Human Rights official acknowledged that while the current legal system is flawed, the first to file principle does provide legal certainty. “However, it does not effectively engender a sense of justice. Many brands have been registered by those who are actually not the real holders,” he said. A bill to amend current laws on patents, brands and industrial designs is now in the making. However, officials insist it will still adhere to the first to file principle.

    Gajah Mada University Professor Muhammad Hawin has said the courts often don’t side with foreign brands. “The spirit to protect foreign investors is not strong yet,” he was reported saying. His statement comes after the MA decision, in January, banning Swedish retailer IKEA from using its name on certain products here. As it happens, a Surabaya furniture company has been making products with the name IKEA before IKEA registered its brand here.

    Neither Cardin nor IKEA are likely to suffer losses as a result of the MA decisions. The point here is the sense of propriety, or lack thereof, within society. President Joko Widodo refers to “a mental revolution” for the nation to make real progress. As the two cases show, the process is still ongoing with no end in sight.