BRAND PROTECTION AND ITS IMPACT ON CONSUMER PROTECTION

BRAND PROTECTION AND ITS IMPACT ON

CONSUMER PROTECTION

LILI HALIM

A. Introduction

Over time, brands have become simply a symbol that allows consumers to distinguish one product or service from another. Brands make it easier for consumers to remember what they need and quickly decide what to buy.

Philosophically, brands can build image good and bad as part of values goodwill company. This is a menujIt is true that the rapid growth of the economy, particularly in the national industrial and trade sectors, has resulted in a wide variety of goods and services, including various types of products with various brands circulating in urban and rural communities. This has created freedom in choosing various types of specific product brands and their quality according to the consumer's abilities and desires.[1].

In its development The position of a consumer is always weaker than that of a producer. One of the main factors in the weak position of a consumer is the low level of education or public knowledge in the field of consumer protection. so that consumersless attention to brands from a certain products that he consumes.

This causes consumers to only be used as business objects in order to gain maximum profits. This condition can be seen from two instant noodle products below this. Many people may not realize that the two brands actually come from different companies. At first glance, the products appear similar, with the lettering and color being nearly identical. However, upon closer inspection, there are differences in the spelling of the word "" delicious where one writes with aa and another one aaa.

If it is on the market, consumers who are less careful will think that the two products are the same because the words are actually the same. delicious is what is commonly heard and appears in the minds of consumers. Therefore, when they see the writing delicious which is stated on the packaging, without having time to pay attention to the number of letters "to" them, they immediately bought the product.

This can be seen in the image below:

This condition causes some consumers to think Delicious Noodles and Delicious Super Noodles is one producer, moreover Supermi can be said to be the parent of all instant noodles in Indonesia, so it is not impossible that people will ultimately prefer it. Supermi which has more name than Delicious Noodles the original. This is certainly very detrimental to producers delicious noodles because of the similarities in principle, this can have an impact on declining product sales turnover Delicious Noodles Furthermore, it also harms consumers who are fans of "Mie Sedaap" because they feel cheated if they buy the wrong product simply because they didn't pay attention to the number of letters "a” on the brand[2].

Based on this background, the aim of this article is to find out what legal protection is available for consumers who make mistakes in using or consuming a product with a certain brand?  

B. Discussion

1. Brand Overview

a. Brand Definition

According to Article 1 paragraph (1) of Law No. 15 of 2001 concerning Trademarks, a brand is a sign or symbol which can be in the form of a picture, name, word, letters, numbers, color arrangement or a combination of these elements which have distinguishing power and are used in trade activities for goods or services.

Meanwhile, according to AB Susanto and Wijanarko, a brand is a name or symbol associated with a product or service and creates a psychological meaning or association.[3]This shows that a product is what the factory makes. However, what consumers/customers actually buy is the brand. Thus, a brand is not just what the product or its packaging represents, but also what consumers think and associate with it.[4].

Based on the legal definition of a trademark above, we can determine the elements that must be met to determine something as a trademark. The following explanation is an illustration that can be explained based on the contents of the article. A trademark is a sign or symbol, which can take the form of:

(1) Image. For example, a brand that uses an image of an elephant, this can be seen in the Gajah Duduk sarong brand;

(2) Name. Brands that use people's names for perfume brands, for example Charlie, or Van Houten chocolate and others;

(3) Words. Brands that use words, for example Family for a cake brand;

(4) Numbers. For example, numbers 555 used as a cigarette brand;

(5) Letters. For example, a collection of letters. Brand SPC for various food and beverage products;

(6) Color arrangement. The color arrangement is red, green, yellow, blue. For example, the rainbow colors used for colored pencil brands;

(7) a combination of all of the numbers (1) – (6). For example, on the Djie Sam Soe cigarette packaging. There is a collection of words, symbols of several stars, the number 234[5].

Meanwhile, technically there are several types of brands, namely:

 (1)    A trademark is a trademark used on goods traded by one person or several people together or a legal entity to differentiate them from other similar goods (Article 1 number 2 of Law No. 15 of 2001).For example Toyota.

(2) Brands of goods or services, is a trademark used for services traded by one person or several people together or a legal entity to differentiate it from other similar services. For example, a brand used or attached to goods or services or their packaging that are traded. For example, the Kijang brand, Tiki (delivery service)/ (Article 1 number 3 of Law No. 15 of 2001) .

(3)     A Collective Brand is a Brand used on goods and/or services with the same characteristics which are traded by several people or legal entities together to differentiate them from other similar goods and/or services. For example, Ayam Suharti, Es Teller 77, etc. (Article 1 number 4 of Law No. 15 of 2001).

b. Legal Protection of Trademarks

One aspect that plays a role in providing legal protection for a particular brand is brand registration. Brand registration is important because it can serve as valid evidence of a registered brand. Furthermore, according to Article 6 of Law No. 15 of 2001, brand registration also serves as a basis for rejecting trademarks that are entirely or essentially the same as those applied for by others for similar goods or services. Furthermore, it serves as a basis for preventing others from using essentially or entirely the same trademark in the distribution of goods or services.

Thus, it can be concluded that a person will have rights to a particular brand if they have registered it. If two or more people claim or declare rights to a particular brand, the party who has registered the brand holds the rights.   

Not all trademarks can be registered. A trademark cannot be registered if the application is filed by an applicant acting in bad faith. An applicant acting in bad faith is one who registers their trademark improperly and dishonestly, with ulterior motives, such as piggybacking, copying, or plagiarizing a trademark's reputation, creating unfair competition and misleading or deceiving consumers.[6].    

Article 5 of Law No. 15 of 2001 concerning Trademarks states that a trademark cannot be registered if:

a) signs that are contrary to morality and public order. For example, words or paintings/images that violate morality, offend honor and religious feelings;           

b) is a sign that is too simple and has no distinguishing power. For example, a line or a dot. Too complicated, for example, tangled thread, the arrangement of a poem;

c) signs that have become public property. For example, a thumb;

d) a sign that is a description or related to the goods to which the brand is attached. For example, a picture of an orange for orange syrup containing orange flavor;

 In addition, a trademark application must be rejected on the grounds that it has similarities in principle or all of them for similar goods/services for the following reasons (Article 6 paragraph (1) of Law No. 15 of 2001):

a) there is another party's brand that has been registered first.

b) there is a well-known brand owned by another party.

c) related to well-known geographical indications.

What is meant by Similarities in Principle is a similarity caused by the presence of prominent elements between one brand and another. According to jurisprudence, similarities are essentially as follows[7]:

a) Similarities in principle concerning sound. For example, the case of Salonpas and Sanoplas. Ultimately, the Sanoplas brand had to be discontinued; the Sony brand with Sonni.

b) Similarities in the images. For example, the case of Miwon and Ajinomoto, both of which have images of red bowls, although the bowls are in different positions.

c) Equations related to real meaning.  

d) Similarities in principle due to additional words. For example, the case of Aqua mineral water and Aquaria.

e) Geographical Indications. For example, Toraja Coffee originates from the Toraja region. Balinese Brem from Bali, Pekalongan Batik from Pekalongan, and so on.

Other than that, Application Trademark registration should also be rejected if The brand is a[8]:

a. Constitutes or resembles the name of a famous person, a photo, or the name of a legal entity owned by another person, except with the written consent of the authorized party;

b. Is an imitation or resembles the name or abbreviation of a name, flag, symbol or emblem of a country or national or international institution, except with the written approval of the authorized party;

c. Is an imitation or resembles an official mark or stamp or seal used by a state or government agency, except with written approval from the authorized party.

Based on the various descriptions, it can be seen that if consumers buy or use another product that is similar to the product they associate with, this shows that consumers do not receive protection as consumers.

 2. Legal Aspects of Consumer Protection

Consumer protection is carried out as a joint effort based on 5 (five) principles that are relevant to national development, namely:

1). The principle of benefit is intended to mandate that all efforts in implementing consumer protection must provide the greatest possible benefit for the interests of consumers and business actors as a whole.

2). The principle of justice is intended to ensure that the participation of all people can be realized to the maximum and provide opportunities for consumers and business actors to obtain their rights and carry out their obligations fairly.

3). The principle of balance is intended to provide a balance between the interests of consumers, business actors, and the government in a material or spiritual sense.

4). The principle of consumer safety and security is intended to provide a guarantee of safety and security to consumers in the use, consumption and utilization of goods and/or services consumed or used.

5). The principle of legal certainty is intended to ensure that both business actors and consumers obey the law and obtain justice in the implementation of consumer protection, and the state guarantees legal certainty.

Regarding these five principles, according to Miru and Yodo, if the substance of the five principles above is examined, they can be divided into three principles.[9], that is:

1). The principle of utility which also includes the principle of consumer safety and security

2). the principle of justice which also includes the principle of balance

3). principle of legal certainty

Article 3 of the Consumer Protection Law (UUPK) states that consumer protection aims to:

a.       increase consumer awareness, ability and independence to protect themselves;

b.      elevate the dignity and status of consumers by preventing them from negative excesses in the use of goods and/or services;

c.       increasing consumer empowerment in choosing, determining and demanding their rights as consumers;

d.      creating a consumer protection system that contains elements of legal certainty and information transparency as well as access to information;

e.       raising awareness among business actors regarding the importance of consumer protection so that an honest and responsible attitude towards business grows;

f.       improving the quality of goods and/or services that guarantee the continuity of the production of goods and/or services, health, comfort, security and safety of consumers.

Furthermore, Article 4 of the Consumer Protection Law stipulates that consumer rights are:

a.      the right to comfort, security and safety in consuming goods and/or services;

b.      the right to choose goods and/or services and to obtain said goods and/or services in accordance with the exchange value and conditions and guarantees promised;

c.       the right to correct, clear and honest information regarding the condition and guarantee of goods and/or services;

d.      the right to have one's opinions and complaints heard regarding the goods and/or services used;

e.       the right to receive advocacy, protection and appropriate efforts to resolve consumer protection disputes;

f.       the right to receive consumer guidance and education;

g.      the right to be treated or served properly and honestly and without discrimination;

h.      the right to receive compensation, damages and/or replacement, if the goods and/or services received do not comply with the agreement or are not as they should be;

i.        rights regulated in other statutory provisions.

Meanwhile, Article 7 of the UUPK stipulates that the obligations of business actors are:

a.      act in good faith in carrying out business activities;

b.      provide correct, clear and honest information regarding the condition and guarantee of goods and/or services and provide an explanation of use, repair and maintenance;

c.       treat or serve consumers properly and honestly and without discrimination;

d.      guarantee the quality of goods and/or services produced and/or traded based on the applicable quality standards for goods and/or services;

e.       provide consumers with the opportunity to test and/or try certain goods and/or services and provide guarantees and/or warranties for goods manufactured and/or traded;

f.        provide compensation, restitution and/or replacement for losses resulting from the use, consumption and utilization of traded goods and/or services;

g.      provide compensation, damages and/or replacement if the goods and/or services received or used do not comply with the agreement.

Article 8 of the UUPK stipulates that:

(1) Business actors are prohibited from producing and/or trading goods and/or services which:

a.      does not meet or does not comply with the required standards and provisions of laws and regulations;

 b. does not correspond to the net weight, net content, and quantity as stated on the label or label of the goods;

c. does not correspond to the size, measurement, weight and quantity calculated according to the actual size;

d. does not conform to the conditions, guarantees, features or efficacy as stated in the label, etiquette or description of the goods and/or services;

e. does not conform to the quality, level, composition, processing, style, mode or specific use as stated in the label or description of the goods and/or services;

f. does not comply with the promises stated in the label, label, description, advertisement or sales promotion of the goods and/or services;

g. not including the expiry date or the best period of use/utilization for certain goods;

h. does not follow the provisions for halal production, as stated in the "halal" statement on the label;

i. not attaching labels or making product descriptions containing the name of the product, size, net weight/contents, composition, instructions for use, date of manufacture, side effects, name and address of the business actor and other information for use which according to regulations must be attached/made;

j. does not include information and/or instructions for use of the goods in Indonesian in accordance with applicable laws and regulations.

(2) Business actors are prohibited from trading damaged, defective or used goods, or contaminated goods without providing complete and correct information about the goods in question.

(3) Business actors are prohibited from trading damaged, defective, used or contaminated pharmaceutical and food supplies, with or without providing complete and correct information.

(4) Business actors who commit violations in paragraph (1) and paragraph (2) are prohibited from trading the goods and/or services and are required to withdraw them from circulation.

3. The Influence of Brand Protection on Consumer Protection

The formal definition of the term "consumer" can be found in Law Number 8 of 1999 concerning Consumer Protection (UUPK). In the UUPK provisions, a consumer is any person who uses goods and/or services available in society, whether for their own benefit, their family, other people, or other living creatures, and not for trade. 

Meanwhile, the understanding of business actors can be difound in the provisions of Article 1 point 3, the essence of which is that they (both individuals and business entities) carry out activities in the economic sector.

In general, the enactment of consumer protection regulations represents a government effort to maintain a healthy business climate and create a balance between businesses and consumers. As has long been known, the rapid development of industry and trade has resulted in an imbalance between businesses and consumers, with consumers becoming mere objects of business exploitation for profit. Therefore, this law contains provisions regarding the rights and obligations of both businesses and consumers.

In relation to consumer protection, violations of brand rights can have quite fatal impacts on consumers, this is because brands are related to consumer needs.[10].

According to Miru and Yodo, regulations regarding trademark use can impact the use of certain goods suspected of being similar to existing brands, or even of being counterfeit. They further explained that consumers accustomed to using certain brands could suffer losses due to the mistaken consumption of goods of a different quality than usual.

Thus, in order for consumers to be given protection so that they do not make mistakes in consuming a product, one of the elements that determines whether a brand has similarities in principle or in its entirety is whether it can cause confusion and chaos for the general public.[11].

Where, a particular brand is indicated:

a. has similarities in principle or in its entirety with a Mark belonging to another party that has been previously registered for similar goods and/or services;

b. has similarities in principle or in its entirety with a well-known Mark belonging to another party for goods and/or the like.

c. Having similarities in principle or in its entirety with known geographical indications[12].

Essential Similarity is a similarity caused by the presence of prominent elements between one brand and another. According to jurisprudence, essential similarity is as follows.[13]:

a) Similarities in principle concerning sound. For example, the case of Salonpas and Sanoplas. Ultimately, the Sanoplas brand had to be discontinued; the Sony brand with Sonni.

b) Similarities in the images. For example, the case of Miwon and Ajinomoto, both of which have images of red bowls, although the bowls are in different positions.

c) Equations related to real meaning.  

d) Similarities in principle due to additional words. For example, the case of Aqua mineral water and Aquaria.

e) Geographical Indications. For example, Toraja Coffee originates from the Toraja region. Balinese Brem from Bali, Pekalongan Batik from Pekalongan, and so on.

Thus, any form of brand that is indicated to have similarities with a brand that already exists will have a detrimental impact on business actors who have the brand that already exists, as well as on consumers.

The disadvantage for businesses with copied brands is that their product marketing can be disrupted. Because consumers mistakenly purchase similar products, sales of the original product decline, which in turn results in losses for the business. Meanwhile, consumers who make the wrong purchase can experience dissatisfaction due to the difference in quality, even though the product is similar. This demonstrates that producers are legally and psychologically responsible to consumers regarding the brand of their product.

In this regard, according to Prasetya, the purpose of using a brand is so that consumers can identify who produces or sells the goods. Thus, a brand serves as a signal for consumers to identify and assess the quality of a particular product or service based on their experience using that brand. Based on this, a particular brand can influence consumers to continue using that brand because consumers feel safe using it. This will certainly impact the producer's profits.[14].

Meanwhile, consumer obligations are also regulated in Article 5 of the Consumer Protection Law, which states among other things:

1.            Read or follow the information instructions and procedures for using or utilizing goods and/or services, for safety and security.

2.            Have good intentions in carrying out transactions to purchase goods and/or services.

3.            Pay according to the agreed exchange rate.

4.            Following efforts to properly resolve consumer protection disputes.

If diA closer look at the provisions of Article 5 reveals that responsibility for product safety does not solely rest with the business owner or producer. Consumers, as product users, also have an obligation to ensure their own safety when consuming products produced by producers, namely by exercising caution before purchasing them.

Thus, consumer knowledge of a particular brand and its qualities will also build a relationship between the consumer and the product or service in the future. This will impact the consumer's continued use of that brand, which will benefit the producer.[15].

In this regard, awareness-raising efforts regarding consumer protection must involve both producers and consumers. This ensures a balanced responsibility to ensure the safety and comfort of product users (as stipulated in Article 4 of the Consumer Protection Law). Meanwhile, in practice, there has been little outreach regarding the obligations of consumers as part of the consumer protection system stipulated in the Consumer Protection Law. Thus, efforts to create legal protection that fosters a healthy business climate and relationships between businesses and consumers can be realized.

C. Closing Event

Regulations regarding trademark use can impact the use of certain goods suspected of being similar to existing trademarks, or even of brands suspected of being counterfeit. trademark registration is one of the efforts to provide legal protection for consumers. By registering a particular brand, it can be used as as a basis for rejecting a trademark that is identical in its entirety or essentially the same as that applied for by another person for similar goods or services. In addition, it can be used as a basis for preventing another person from using the same trademark in its entirety or essentially the same in the circulation of goods or services.

This is useful because it allows consumers to identify who produces or sells the product. Thus, a brand serves as a signal for consumers to identify and assess the quality of a particular product or service based on their experience using that brand. This can influence consumers to consistently use that brand, ultimately benefiting the producer and providing consumers with a sense of security when using a particular brand.

BIBLIOGRAPHY

AB Susanto and Himawan Wijanarko, 2008, summarized from “Power Branding: Building Superior Brands and Their Supporting Organizations” Jakarta: Mizan Pustaka.

Ahmadi Miru and Sutarman Yodo, 2004, Consumer Protection Law, Raja Grafindo Persada, Jakarta.

Minesota department of Trade and Economic Development in Ahmadi Miru and Sutarman Yodo, 2004, Consumer Protection Law, Raja Grafindo Persada, Jakarta.

Ruhi Prasetya in Ahmadi Miru and Sutarman Yodo, 2004, Consumer Protection Law, Raja Grafindo Persada, Jakarta.

Sudarga Gautama, in Ahmadi Miru and Sutarman Yodo, 2004, Consumer Protection Law, Raja Grafindo Persada, Jakarta.

http://www.atmajaya.ac.id/content.asp?f=23&id=5212

http://moo-ach.blogspot.com/2010/02/tugas-analisis-kasus-hukum-merek-dagang.html

Law Number 8 of 1999 concerning Consumer Protection

Law Number 15 of 2001 concerning Trademarks