Tuesday, February 1, 2011

The missing well known mark regulation

In December 2010 the Jakarta Commercial court decided the case of BOTOX vs BOOSTOX, brought by US Allergan Inc against a local defendant Titin who had registered BOOSTOX in class 3. The court’s decision reads:

1.       BOOSTOX is similar to the well-known mark BOTOX.

2.       The goods – personal care face creams to reduce aging - were similar to Allergan’s goods in classes 3 and 5.

3.       That BOTOX is well-known through its long and continuous promotion so has protection against dissimilar goods.

Dissimilar goods protection is problematic in Indonesia as the law specifically states that well known mark protection for goods and/or services that are not of the same type must fulfill particular requirements “as may be further provided in a Government Regulation.” Since 2001 when the law was enacted the Regulation has not been promulgated. So the courts have had to find their own way around this and so they make their own decisions on well known marks based on evidence filed.

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