Industrial Design shall mean a creation of shape, configuration or composition of lines or colors, or lines and colors, or the combination thereof in the form of three or two-dimensional form which gives aesthetic values and can be realized in a three or two-dimensional pattern and can be used to produce a product, goods, an industrial commodity or handicraft.
Exclusive Right shall mean the exclusive right granted to a designer for his creation for a given period of time to exploit his creation by himself or to give permission to another party and prohibit others who without his consent make, use, sell, import, export and / or distribute goods given industrial design.
Designer shall mean a person or several persons who produce an industrial design.
HISTORY OF INDUSTRIAL DESIGN IN INDONESA.
At first the Industrial Design is covered by – Law No. 25 Year 1984 regarding Industry. Then it is separately regulated in Law No. 31 of 2000 on the industrial design until now. Industrial design right is granted for a new industrial design, that is, if the date of filing of the industrial design is not the same as the design of which has been previously disclosed.
ELEMENTS IN INDUSTRIAL DESIGN
Based on the above definition, it can be concluded that the elements of industrial design is as follows:
- Creation which is protected by Law Number 31 Year 2000 regarding Industrial Design can take the form of three-dimensional (shape and configuration) as well as two-dimensional (composition of lines or colors).
- The creation gives aesthetic impression.
- The creation can be used to produce a product, goods, industrial commodity or handicraft.
FUNCTIONS OF INDUSTRIAL DESIGN RIGHT PROTECTION
- Industrial Design right holder has an exclusive right to exploit his industrial design.
- Prohibiting another person without his consent from making, using, selling, importing, exporting and / or distributing goods by Industrial Design right.
SUBJECTS DESERVING PROTECTION FOR INDUSTRIAL DESIGN.
- Protection of the industrial design is an element of novelty of the elements that is protected by Law No. 31, 2000. An industrial design has a novelty when it called on the filing date, such industrial design is not the same as or different from previous disclosures, although there are similarities.
- The previous disclosure referred to is the disclosure of Industrial Design that before:
- The filing date; or
- The priority date, if the application is filed with priority right; It has been announced or used in Indonesia or outside Indonesia.
An industrial design is not deemed to have been published if within a period of 6 (six) months prior to the filing date, such industrial design:
- Has been demonstrated in a national or international exhibition in Indonesia or overseas that is official or officially recognized; or has been used in Indonesia by the designer in an experiment with the purpose of education, research or development.
- Does not conflict with the prevailing law, public order, religion and morality.
BASIC LEGAL PROTECTION FOR INDUSTRIAL DESIGN.
- Law No. 31 of 2000 on Industrial Designs
- Explanation of Law Number 31 Year 2000 regarding Industrial Design
- By Law No. 1 Year 2005 on Implementation of Law No. 31 year 2000 on Industrial Designs Dated January 5, 2005.
- By Law No. 45 Year 2014 revision of By Law No. 38 Year 2009 on Types and Tariffs on State Income Tax Applicable to the Ministry of Justice and Human Rights
SUBJECTS TO OBTAIN PROTECTION OF INDUSTRIAL DESIGN RIGHT
- The one entitled to receive the Right of Industrial Design shall be the designer or a person who receives the right from the designer.
- Where Designer comprise several persons jointly, the Right of Industrial Design is awarded to them jointly, unless otherwise agreed.
- Where an industrial design is created in an official relation with another party within the working environment or made by others by order, the Right Holder of Industrial Design is a party to and / or in whom the industrial design is created, unless there is other agreement between the two sides without affecting the right of the designer if the use of the industrial design is expanded beyond the official relation.
- Where an industrial design is created in employment relationships or under orders, the person who created the industrial design is considered as the designer and the Right Holder of Industrial Design, unless otherwise agreed between the two parties.
INDUSTRIAL DESIGN NOT DESRVING PROTECTION
Industrial Design right cannot be granted if the industrial design is contrary to the prevailing law, public order, religion or morality.
DURATION OF PROTECTION
- Protection of Industrial Design Right is granted for a period of 10 (ten) years from the filing date.
- The date of commencement of the referred protection period is recorded in the General Registry of Industrial Designs and published in the Official Gazette of Industrial Designs.
PROCEDURES FOR REGISTRATION
Application for registration of industrial design is submitted by filling out the form provided for that in Indonesian and is typed in copies of 3 (three).
- The applicant must attach:
- Date, month and year of application;
- The name, complete address, and citizenship of the Designer;
- The name, complete address and nationality of the Applicant;
- Full name and address, if the application is filed by a Power of Attorney; and
- The name of the country and the date of its first time filing, in terms of the application filed with Priority Right.
Application shall be signed by the applicant or his proxy and shall be accompanied by:
- Sample of a physical or drawing or photograph and description of the industrial design being applied for registration (to facilitate the announcement of the petition process, preferably the form of pictures or photos being be scanned, or in a diskette or floppy disk with the appropriate programs);
- The special power of attorney, if the application is filed by a proxy;
- A statement that the industrial design being applied for registration is the property of the applicant or the property of the designer.
- If the application is filed jointly by more than one applicant, the application shall be signed by one applicant with a written consent from the other applicants.
- If the application is filed by the designer, such application shall be furnished with sufficient evidence that the applicant is entitled to the relevant industrial design.
- Paying the application fee to every proposal.
ASPECTS RELATED TO THE REGISTRATION
Priority Right is the right of an applicant to file an application originating from countries that are members of the Paris Convention for the Protection of Industrial Property or the Agreement Establishing the World Trade Organization to obtain acknowledgment that the filing date he is filing in the destination country, which is also a member of the Paris Convention or the Agreement Establishing the Organization World trade, having the same date with the filing date in the country of origin during the period of time specified in the Paris Convention. Application with a right of priority must be filed within a period of 6 (six) months from the date of receipt of the application which was first received by other countries that are members of the Paris Convention for the Protection of Industrial Property or the Agreement Establishing the World Trade Organization.
Right Holder of Industrial Design is entitled to grant a license to other parties under licensing agreement to conduct acts as referred to in Article 9, unless otherwise agreed.
- License Agreement shall be recorded in the General Registry of Industrial Designs at the Directorate General with the payment of fee as regulated in this Law.
- License Agreement that is not recorded in the General Registry of Industrial Designs shall not apply to any third party.
- License Agreement referred to in paragraph (1) shall be announced in the Official Gazette of Industrial Designs.
Form and Content of License Agreement
- License Agreement shall not contain provisions that may cause adverse effects in Indonesian economy or contain provisions which result in unfair competition as stipulated in the prevailing legislation.
- The Directorate General of IPR shall refuse registration of a licensing agreement that contains the provisions referred to in paragraph (1).
- The provisions concerning the recording of a licensing agreement is regulated by Presidential Decree.
TRANSFER OF RIGHT
Industrial Design right can be transferred by way of inheritance, grants, wills, written agreement, or any other cause which is justified by the legislation.
Industrial Design Assignment must be accompanied with documents on the transfer and shall be recorded in the General Registry of Industrial Design at the Directorate General of Intellectual Property Rights with the payment of fee as regulated in this Law.
Industrial Design Assignment that is not recorded in the General Registry of Industrial Design is not any legal consequences on any third party.
Industrial Design Assignment will be announced in the Official Gazette of Industrial Design.
Industrial Design Assignment does not remove the right of the designer to keep his name and identity in the Certificate of Industrial Design, Industrial Design Official Gazette, and in the General Registry of Industrial Design.
CANCELLATION OF REGISTRATION
Industrial design that is already registered can be cancelled with two (2) ways:
- At the request of the right holder.
Registered industrial design may be cancelled by Directorate General of IPR upon written request submitted by the right holder. If the industrial design has been licensed, there must be a written consent of the licensee recorded in the public Register of Industrial Design, which is attached to the registration cancellation request. If there is no agreement, the cancellation cannot be done.
- According to the lawsuit (court decision).
The lawsuit on cancellation of registration of industrial design may be submitted by interested parties on the grounds referred to in Article 2 or Article 4 of Industrial Design Law to the Commercial Court. The decision of the Commercial Court shall be submitted to the Directorate General Intellectual Property Rights within 14 (fourteen) days after the date of the judgment.
Cancellation of registration of industrial design nullify all legal consequences associated with industrial design right and other right derived from the industrial design.