Source: Bisnis Indonesia, June 1, 2009, by Elvani Harifaningsing
(Translated by Ni Mahati Gandjar)
JAKARTA: The Jakarta Commercial Court’s Decision regarding the cancellation of trademark “Cherry”–registered by one of the local businesses–is, as matter of fact, final. This is made possible following a recent decision rendered by Supreme Court.
In their legal consideration, the Chief of the Panel Judges at the Supreme Court Mr Abdul Kadir Mappong stated that trademark “Cherry” registered in the name of Adrian Umbara No. 558016 dated 13 January 2003 has similarities with trademark “Chery” owned by Wu Hu Chery Technology Co. Ltd. which was first registered in China on 21 February 2002. “Trademark Chery owned by the Plaintiff Wu Hu is a well-known mark, therefore, registration of Cherry No 558016 by Adrian was based on bad intention to illegally take advantage or to imitate the popularity of the Plaintiff’s trademark,” said Abdul in his review last week.
Previously, the Jakarta Commercial Court has ruled part of legal claims filed by Wu Hu against bicycle manufacturer “Cherry” of Adrian Umbara, in relations with the cancellation of the existing trademark registration at the Directorate General of Intellectual Property Rights-Department of Law and Human Rights.Last year, the chief of the Panel Judges at the Jakarta Commercial Court, Mr Heru Pramono, cancelled the trademark registration “Cherry” No. 558016 dated 13 January 2003 in the name of Adrian for “pumps, spare parts for motor vehicle, components for bicycle”.At that time, the Panel Judges of the First Instance Court was opined that trademark “Cherry” registered in the name of Adrian has substantial similarities with trademark “Chery” registered in the name of Wu Hu.
In their legal consideration, the Chief of the Panel Judges Heru said trademark “Chery” owned by Wu is considered to be a well known international mark and has been registered in various countries such as China, Jordan, Colombia, country members of WIPO, Guatemala, Israel, France, UK, Russia, Singapore, Australia, India, Japan, Malaysia, and South Korea. In addition, the Chamber Judge also decided that the Plaintiff is the sole owner of trademark “Chery”, and ordered the Accused to pay Court Fees of Rp. 5 Million as consequence of the said decision.
Trademark
Although the First Instance Court cancelled the trademark “Cherry” owned by Adrian, the Court did not grant the cancellation of trademark “Chery Brand” in the name of Adrian which has been registered since 1987 to protect the type of goods in Class 12. Dissatisfied with the said decision of the First Instance Court, both parties then submitted cassation requests; Wu Hu questioned why their request for cancellation of trademark “Chery Brand” had not been granted, whereas Adrian submitted cassation against the court decision on the cancellation of his trademark “Cherry”.
At the cassation level, the Supreme Court rejected cassations of both parties. Adrian continued his legal efforts by filing a request for review on the Supreme Court decision on the cancellation of his trademark “Cherry”.
At the review level, the Supreme Court was in fact in the same opinion as and reconfirmed the First Instance Court’s decision on the cancellation of trademark “Cherry” registration number 558016 dated 13 January 2003 in the name of Adrian Umbara.
Legal attorney representing Wu Hu, Mr Imron, conveyed his welcome to the positive decision of the Supreme Court which has strengthened the previous decision rendered by the Jakarta Commercial Court. He further added that the judges at the first instance court should have also granted the cancellation of registration of trademark “Chery Brand” in the name of Adrian Umbara, based on the ground that “Chery” has been stated as well known mark. “Since “Chery” has been considered as well known mark, protection of this trademark can cover all classes, even if the class of goods/services is different,” he said last week in response to the decision on the relevant disputed trademark.
