Examining the use of communal intellectual property as trademarks: A study on legal ambiguities

¹ Business Law Department, Faculty of Law, University of Trunojoyo Madura, Bangkalan, East Java, Indonesia
² Management Department, Faculty of Economics and Business, University of Trunojoyo Madura, Bangkalan, East Java, Indonesia

^* Corresponding author: djulaeka@trunojoyo.ac.id

Abstract

The threat of trademark removal has similarities with communal intellectual property, mainly Traditional Cultural Expressions, as stated in the provisions of Article 72 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications. This differs from the prerequisites for trademark registration as stipulated in Article 20 juncto Article 21, which does not explicitly mention the prohibition of traditional cultural expressions; this is different when registering a trademark based on geographical indications as communal intellectual property is prohibited. This provision will create legal uncertainty between the provisions of the trademark registration requirements and the deletion of the mark. This study examines the relationship between the provisions of Article 72 and Article 20 juncto Article 21 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications as well as legal protection of registered trademarks that have similarities with Traditional Cultural Expressions. This research is normative, so the approach used is a legislative and conceptual approach, with the study of primary and secondary legal materials. The study results show that there needs to be more clarity between Article 72 and Article 20 juncto Article 21 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications. The recommendations of the research results require amendments or revisions to Law Number 20 of 2016 concerning Trademarks and Geographical Indications that can provide legal certainty.