Advancing Non-Traditional Trade Mark Protection in Indonesia: A Comparative Analysis with the United States

Abstract

This study examines the need for improvement of Indonesia's legal framework for the protection of non-traditional trade marks by comparing it with the progressive system of the United States. Marks can be systematically classified into two categories: traditional marks and non-traditional marks. The emergence of these non-traditional marks can be attributed to significant advancements in technology, which has fuelled regulatory frameworks such as the Geographical Mark Law, in addition to various international regulations that seek to regulate their use and protection. Despite the existence of several regulatory arrangements regarding these non-traditional marks, there are still notable differences in the recognition of such marks, a phenomenon that is primarily driven by the different legal cultures that exist in different countries. This situation inevitably raises pertinent questions regarding the urgent need for Indonesia to develop and improve its national legal framework in this particular area. Currently, Indonesia's legal structure is rooted in the principles of Pancasila and recognises only four types of non-traditional trademarks In contrast, the US adopts a more inclusive utilitarian approach, accommodating a broader spectrum of non-traditional marks without strict limitations. Nevertheless, it is important to recognise that there are many shortcomings in the practical implementation of laws relating to non-traditional marks, a concern aptly highlighted in the critique articulated by Irene Cabouli. As a result, the advancement and evolution of legal statutes governing the rights associated with non-traditional trade marks is becoming increasingly important, especially in light of the rapid development of society and the necessity to proactively address potential challenges that may arise, including the insightful critique raised by Irene Cabouli herself.