Three-Dimensional Functional Brand Protection in Indonesia After the Implementation of Law Number 6 of 2023 (Comparison of Regulations in the United States and Japan)

Abstract

Since the entry into force of the Law No. 20 of 2016 on Trademarks and Geographical Indications, Indonesia has officially granted recognition to 3 (three) dimensional trademarks. Nevertheless, this Act only provides provisions concerning the formality requirements for filing applications for registration of 3 (three) dimensional trademarks. Substantially, the Act No. 6 of 2023 on the Establishment of Government Regulations replaced the Law No. 2 of 2022 on the Creation of Works into the Act adding a provision in article 20 of the Act no. 20 of 2016 that forms of a functional nature cannot be registered as trademarks. There is no explanation of the meaning of functional form in this Act. Based on this problem, the author tries to study the implications of the current Copyright Act using grammatical interpretation methods as well as using a comparative approach to the provisions in the United States and Japan. This article explains about the three-dimensional distinctive force, associated with the secondary meaning theory. Based on research in literature, it is known that there is a breakdown between trademarks and patents in the registration of forms of a functional nature. This article also reinforces the argument that a functional form cannot be protected as a trademark.