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Wednesday, September 5, 2012

Indonesia Baby Dior court decision

IP Komodo wrote about the fact that the BIORE v BIORF case was lost at first instance in odd circumstances. Also that the GAMESPOT case went the same way but was won on appeal to the Supreme Court.

Now several new cases with similar problems have been reported in the media. In one, Christian Dior sued for cancellation of Kimsan Purwo's trademark Baby Dior registered in class 12 for bicycle products in the Jakarta Commercial Court but lost last month. The judges ruled no similarity in sound, speech, and appearance. In addition, Baby Dior and Christian Dior are trademarks in different classes. They said the word Baby is public property found in dictionaries and can be used by anyone. While the latter is clearly not correct the judges are at liberty to decide no similarity on the facts. But it seems the court also did not agree with the Plaintiff's other arguments concerning the defendant's bad faith (it is hard to see that DIOR is not going to be in bad faith but perhaps little evidence was submitted) or that Christian Dior is a famous mark. In fact the court suggested that Christian Dior is a well-known mark but ruled against them regardless. Christian Dior's lawyer has said he would appeal.

Cases like this and the BIORE decision suggest that the Central Jakarta Commercial Court is sometimes unreliable. Litigants must bear in mind that cases often need to be appealed to be won. The Central Jakarta Court has in previous years developed a reasonable reputation, at least compared to the District Courts which handled IP cases in the Soeharto era 1990s when corruption decided most decisions anyway. But suspicious decisions, in some cases where defendants did not even appear (which in any other country would be very hard cases to lose) still suggest impropriety on the part of some judges. It is a sad fact that a proportion of Indonesian cases are still lost through the weaknesses of the court system and impropriety of judges. See here for previous reports an anti corruption investigation into an IP judge.

That is not a reason to give up however. In fact where cases are not well drafted with good clear evidence they are riskier because that gives an unscrupulous judge more opportunity to find some real errors to throw a case out. Secondly appeals are much easier if the Supreme Court can see it is a clear cut winnable case but the lower court obviously made a poor decision.

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