24 November 2021
In the previous article , we have discussed the legality of parody in the realm of copyright law. In this article, we will discuss parody in the realm of trademark law. Parody is not only done on creations, there are also many business actors who use parodies of well-known brands so as to give a humorous impression on the brand, and can also be a marketing method to increase profits. Examples are the well-known brand “ANGRY BIRDS” which was parodied as “ANGKRY NGAN” or the well-known brand “ADIDAS” which was parodied as “AINDA” and “ADIMAS”.
Law Number 20 of 2016 concerning Marks and Geographical Indications (Mark Law) does not specifically regulate the use of parody marks. However, Article 21 of the Trademark Law stipulates that a mark may not have similarities in principle with well-known marks and/or previously registered marks.
As for what is meant by “basic similarity” in the explanation of the article is the similarity caused by the presence of a dominant element between one Mark and another, giving rise to the impression of a similarity, whether regarding the form, placement method, writing method or a combination of elements, as well as the similarity of speech sounds, contained in the Mark.
Furthermore, according to Prof. Rahmi Jened in her book entitled Trademark Law, stated that this brand parody is included in the dilution act in the form of tarnishment. This tarnishment occurs when a brand is used by someone without permission in the context of a travesty that completely contradicts the reputation that has been built by the underlying brand being parodied. Quoted from the same book Thomas Mc. Carty also provides factors that can be used as a reference to show brand dilution, namely:
- The brand used is a well-known brand that has a reputation.
- Brands have similarities in principle, especially for goods that are not of the same type.
- There are uses that are for the reduction, fading and blurring of rights without rights.
Although the Trademark Law does not specifically regulate parody trademarks. Committing a parody of someone else’s brand can be categorized as a form of brand infringement, namely the violation of the exclusive rights of the brand holder through the form of using the brand without rights, using a brand with the basic similarities, changing certain brand marks to create an element of antics, so that it can potentially damage the image or goodwill. which the brand owners painstakingly built. Parody of mark which can be categorized as trademark infringement under the Trademark Law is parody of mark which basically has similarities with registered mark and/or well-known mark and is used as mark in similar goods/services. And if the brand owner feels aggrieved, the mark owner can take legal remedies, either criminal law,
So, it is highly recommended for all readers to create an original brand to be a characteristic of the product to be used instead of making a parody of a well-known brand that might cause losses in the event of a lawsuit from a well-known brand owner.
