Analisis Perbuatan Passing Off (Pemboncengan Reputasi) dalam Penggunaan Merek Terkenal (Studi Putusan No.18 PK/Pdt.Sus-HKI/2021)

Abstract

Brands have such a strategic function in the competition to seize the market. Well-known brands are the target of many people to imitate or create almost the same brand so that consumers become confused to distinguish which brand is the original. The problem discussed in this research is how the criteria for a brand can be said to be a passing off act in the use of a well-known brand based on Law Number 20 of 2016 concerning Brands and Geographical Indication, how are the efforts of legal protection against well-known brand owners with passing off acts carried out by other parties, how is the judge’s consideration of the passing off act in the use of well-known brands based on the ruling No.18PK/Pdt.Sus-HKI/2021. The research uses a normative legal research method by collecting data from library studies and document studies. The data sources employed in this research are primary and secondary data seources and using qualitative data anlysis. The research results are the passing off criteria which substantively refer to the equation in essence/overall in the provisions of law No. 20 of 2016 concerning Brands and and Geographical Indication, among others : the existence of real actions of passing off actors, reputation, misrepresentation and existence of loss. Efforts of legal protection against well-known brands owners with the existence of the passing off acts carried out by other parties are contained in th Articels 21 and 83 of law on Brands and Geographical Indication, article 19 paragraph (1) Permenkumham (Regulation of the minister of Law and Human Rights) No. 67 of 2016 concerning brand registration, Article 16 of TRIP’s Agreement and Article 6 of the Paris Convention. The consideration of the panel of the judges against the act of passing off in the use of a well-known brands based on the ruling No. 18PK/Pdt.Sus-HKI/2021 is regarding the equality which is basically inappropriate and not in accordance where the defendant fulfills all elements of equality in its entirety according to Jurisprudence Number 279 PK/Pdt/1992, regarding good faith, it is in accordance with thee regulation of the law on Brands and Geographical Indication and Article 19 Paragraph (1) of Permenkumham No.67 of 2016,regarding well-known brands, it is appropriate and accordance with Article 17 paragraph (2) of Permenkumham No.67 of 2016.