TMAC on hold

The Trademark Appeals Commission will not hear any cases in the month of January, and possibly beyond, as it goes through an internal re-organisation.

The Directorate-General of Intellectual Property is arranging a reshuffle at the TMAC. The Chief and some TMAC members will be replaced in coming weeks, and until the new lineup is installed the TMAC will not hear any appeals.

Article 33(3) of the Trademark Law (No. 15 of 2001) states that TMAC members may serve a term of three years. Reshuffles occur as these terms expire.

The TMAC hears appeals from decisions of the Trademark Office in the substantive examination of trademark applications.

BMW v. BMw

An anything.id domain name dispute that has spilled into the media may well go on to test PANDI's PPND dispute resolution policy.

Indonesia’s domain name administrator, PANDI, commenced a sunrise period for anything.id domains on 20 January 2014.  During this time, proprietors of corresponding trademark rights were able to apply for registration of anything.id domains (see our post here).  German automotive company BMW apparently did not, and later on (16 April 2014) an individual named Benny Muliawan secured registration of www.bmw.id.  Legitimate, he says, because his initials are “BMw” (see Detik story here, and Tribune News story here).

The dispute appears to be in its early stages.  BMW (through its attorney) sent a warning letter to BMw, presumably expressing concern about consumers being mislead, and perhaps threatening litigation.  BMw argues in response (in the media, at least) that BMW missed the sunrise period, and he that has no intention to ride on the fame of the BMW brand.  The chairman of PANDI’s Socialisation and Communication division, Sigit Widodo, says this is the first anything.id dispute he’s aware of, and that PANDI is prepared to assist by arranging mediation ahead of activating PANDI’s dispute resolution policy (the PPND - Penyelesaian Perselisihan Nama Domain).  He also confirmed that litigation was also an available option.

Here’s the twist. BMw is an IP Consultant (a.k.a. patent/trademark attorney) and the founder of BNL Patent (see BNL Patent’s website here).  He apparently does a lot of work for SMEs, and appears to have achieved some good publicity here as someone who is prepared to take on even the world’s most established brands.  There doesn’t appear to be any content posted at www.bmw.id, but perhaps we can expect to see something soon.

Here is a photo of BMw holding the warning letter he received from BMW’s attorneys in his right hand, and his book ‘8 Ways To Get a Registered Trademark in his left as published in Kompas):

Limit on Reconsideration Appeals

In a controversial move, the Supreme Court has moved to limit the availability of reconsideration appeals in criminal proceedings.

The Supreme Court issued circular No. 7 of 2014, which prohibits filing of more than one reconsideration appeal, on 31 December 2014.

This was a controversial move, because the circular reversed a recent Constitutional Court decision (No. 34/PUU-XI/2013 of 6 March 2014).  In those proceedings the Constitutional Court decided to strike out a provision of the Criminal Code (article 268(3) of the KUHAP) that limited the availability of reconsideration appeals to one.  That was a high profile case, instituted by ex-Chair of the Corruption Eradication Commission (KPK), Antasari Azhar.  And the Constitutional Court is a highly regarded judicial institution, despite some recent controversy over its former Chief Justice (see here).

The debate rages on over whether multiple reconsideration appeals should be allowed.  Hukum Online reports that those in favour of limiting access to the appeal procedure argue that the judicial system will benefit from legal certainty.  And those against advocate for access to justice and the need to accommodate cases where new evidence is found after a reconsideration appeal (see here).  Others may wonder why such a fundamental change to justice system was introduced by a Supreme Court circular.

Whether or not more than one reconsideration appeal is allowed in civil proceedings is a grey area, and subject to a similar debate.  But Supreme Court circular No. 7 of 2014 applies only to criminal proceedings.