Thursday, October 31, 2013

Christian Dior loses BABY DIOR appeal in Indonesia

Christian Dior's appeal to the Supreme Court against BABY DIOR in class 12 has failed. See here for details on the first instance decision in which Christian Dior sought to cancel BABY DIOR in class 12.
The cassation appeal to the Supreme Court was rejected. Christian Dior's huge portfolio of DIOR marks and its variations in various classes in Indonesia, did not include BABY DIOR which is a mark used elsewhere. Neither did their registrations include any class 12 marks. 

This case shows several difficulties protecting famous marks in Indonesia. First dissimilar goods protection has a somewhat uncertain status, with missing government regulations to blame. Some judges apply Art 16 (3) of TRIPS directly. Others as in this case, do not (arguably a TRIPS breach).

The second problem issue is bad faith. Too many cases are filed with weak or no evidence of bad faith, usually a bare conclusion based on similarity. This leaves a court able to say there is no evidence. Evidence preparation is critical.

Christian Dior has a second right of appeal, but the test for this appeal is much higher. Commentators say this shows that brand owners must register all their marks in all classes, but that is practically impossible. The system of cancellation is supposed to protect against trademark piracy like this.

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