In the midst of the increasing need for public consumption, various brands are increasingly widespread in the market. However, in practice, instead of giving goods with the original brand, some people have a preference for buying counterfeit goods or what is commonly known as “KW goods”. Opinions regarding the legal arrangements for purchasing KW goods also spread, such as the issue of criminal detention that could be imposed on buyers of KW goods. So, is it true that the laws in Indonesia regulate that?
The purchase of fake goods is included in the scope of the regulation of the Trademark Law and Geographical Indications
Regulations regarding branded goods are regulated through Law Number 20 of 2016 concerning Marks and Geographical Indications. This Law is the lex specialis of all provisions related to marks and violations that are subject to sanctions against them. In relation to the purchase of bootleg goods, basically this is not regulated in the Trademark and Geographical Indication Law. However, the public needs to know that the absence of legal threats against the purchase of KW goods only applies to “end users” or end consumers who do not resell the products they buy.
Criminal targets in the Trademark and Geographical Indication Law are aimed at selling KW goods
Judging from the regulation, the target of punishment aimed at the Trademark and Geographical Indication Law is more directed at sellers of KW goods. Based on Articles 100 and 102 of the Trademark and Geographical Indication Law, it is determined that:
(1) Any person who without rights uses the same Mark in its entirety as a registered Mark belonging to another party for similar goods and / or services produced and / or traded, shall be punished with a maximum imprisonment of 5 years and / or a maximum fine. Rp2 billion.
(2) Any person who unlawfully uses a Mark that is similar in essence to a registered Mark owned by another party for similar goods and / or services produced and / or traded, shall be punished with imprisonment of up to 4 years and / or a maximum fine. Rp2 billion.
(3) Any person who violates the provisions as intended in paragraphs (1) and (2), whose type of goods causes health problems, environmental disturbances and / or human death, will be punished with imprisonment of up to 10 years and / or a fine. a maximum of IDR 5 billion.
Any person who trades goods and / or services and / or products which is known or should be suspected of knowing that the said goods and / or services and / or products are the result of a crime as referred to in Article 100 and Article 101 shall be sentenced to a maximum imprisonment of 1 year. or a maximum fine of IDR 200 million
Thus, if the sale of goods similar to a registered mark or a well-known mark is carried out without rights, or in the case of a purchase of a said item which is subsequently made a sale, then such action is clearly a legal threat. Even so, the criminal acts regulated in the Law on Trademarks and Geographical Indications constitute a complaint offense. Therefore, a claim can only be processed if there is a report filed by the relevant mark owner or parties who are entitled to the mark. You could ask law firm jakarta for further information.
However, what if the seller does admit that the item is KW and doesn’t admit that the brand is his?
This is still included in the corridor of regulation in Article 100 and 102 of the Trademark and Geographical Indication Law. Because the recognition is not an element of exclusion and can still fulfill the elements in the regulation of criminal acts related to the sale of KW goods. In fact, the recognition is possible to be the basis of justification for the use of similar marks without rights grounds. Ask law firm indonesia for more details.