Implementation of the Passing Off Doctrine as a Legal Discovery by Judges in Indonesia

Abstract

This research aims to provide an overview of the implementation of the passing off doctrine as a legal discovery by judges in Indonesia’s trademark dispute litigation process. One of the problems related to brands in Indonesia is piggybacking on the reputation (good name) of a well-known brand, thereby causing deception or misdirection among consumers who want to buy goods or services. This problem is further studied using normative juridical research methods with a conceptual approach. This research concludes that the passing off doctrine has not been accommodated in regulations regarding brands in Indonesia. Even though the doctrine of passing off in Indonesia is unknown, passing off that occurs in Indonesia is usually carried out in the form of business actors imitating well-known registered marks of other parties so that they have similarities in whole or, in essence, to similar goods or services. This confuses or is misleading so that consumers will be mistaken in choosing goods or services that are well known and whose quality is guaranteed (public misleading). Judges can use the passing off doctrine in resolving trademark disputes based on related provisions such as Article 21, paragraph (1) of the Trademark and Geographical Indications Law, Article 15, paragraph (1) of TRIPs, and the Law on Consumer Protection.