Nowadays, manufacturers or business owners do not introduce their products to the public solely through their name or trademark. The three-dimensional shape or configuration of a package that is introduced and becomes a distinctive feature of a product can also enhance the reputation or branding of the product or of the company itself.
Take, for example, the Japanese probiotic drink Yakult. In Indonesia, Yakult is produced by PT Yakult Indonesia Persada, a subsidiary and licensee of Yakult Honsha Co. Ltd. The company has not only introduced Yakult through the quality and taste of its product; Yakult’s highly authentic packaging, which has remained unchanged across the eras, has also become a distinct visual identity for the product and has successfully enhanced its branding reputation in the eyes of the public. This has, of course, also had an impact on the economic gains of Yakult’s producer. The Yakult packaging itself has been registered as a three-dimensional trademark under number IDM000377520.
In Indonesia, there are two relevant legal frameworks for protecting product packaging in three-dimensional form, namely protection through Trademarks, governed by Law No. 20/2016 on Marks and Geographical Indications (the Marks and Geographical Indications Law), and Industrial Designs, through Law No. 31/2000 on Industrial Designs (the Industrial Design Law). Unfortunately, however, neither law further regulates the mechanism for protecting three-dimensional shapes, which has resulted in overlapping regulation.
It should be understood that trademark protection and industrial design protection of three-dimensional shapes serve different purposes. Industrial design protection aims to protect a new design produced through a thought process, and at the same time serves as a form of recognition for designers of their work, which has an aesthetic impression and economic value and possesses novelty. Trademark protection, on the other hand, aims to distinguish and give identity to a product and to indicate the origin of goods in relation to the quality of that product. Trademark protection is therefore closely tied to a product’s reputation, which can affect its pricing and public interest in the product.
As for the term of protection, under Article 5 of the Industrial Design Law an industrial design is protected for 10 years and the protection cannot be extended, because the main requirement for a shape to be protected as an industrial design is that it must contain novelty; an industrial design that has passed its protection limit is therefore regarded as “antiquated, old-fashioned or out of date.” In trademark protection, on the other hand, under Article 35 of the Marks and Geographical Indications Law the term of protection is 10 years and can be extended. Because the principle of a trademark is the identity of a product, novelty is not required for a trademark. Of course, in this respect, trademark protection of product packaging has the greater advantage, as it can provide an unlimited term of protection compared with industrial design.
References
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