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Indication of Source in West Java Province: the First Government's Certification on Local Products in Indonesia

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Indication of Source in West Java Province: the First Government's Certification on Local Products in Indonesia Indication of Source in West Java Province: the First Government's Certification on Local Products in Indonesia Miranda Risang Ayu Palar, S.H., LL.M., Ph.D. Head of Intellectual Property Centre for Regulation and Application Studies, Department of Law on Information Technology and Intellectual Property, Faculty of Law, Universitas Padjadjaran, West Java, Indonesia Intellectual Property Rights Exclusive Rights Communal IPR Inclusive Rights Intellectual Property Rights Individual IPR Exclusive Rights Communal Intellectual Property Rights Exclusive Rights Lisbon System Paris Convention System EU System TRIPS Agreement Trade Names Controlled Appellations of Origin Geographical Collective Marks Indications Protected Designations of Certification Origin Marks Traditional Indications Specialized of Source Guarrantee Communal Intellectual Property Rights Inclusive Rights Moral Rights Economic & Moral Rights Traditional Intangible Traditional Genetic Indications Cultural Cultural Knowledge Resources of Source Heritage Expression IS, GI, AO in International Legal Instruments Indications of Source (IS) . Paris Convention for the Protection of Industrial Property of 1883 and the 1911 Revision . Madrid Agreement of 1891 for the Repression of False or Deceptive Indications of Source on Goods Geographical Indications (GIs) . Agreement on the Establishment of the World Trade Organization – Agreement on the Trade Related Aspects of Intellectual Property Rights 1994 IS, GIs, AO in International Legal Instruments Appellations of Origin . Lisbon Agreement of 1958 for the Protection of Appellations of Origin and their Registration (rev. 1967, amn. 1979) . Administrative Instructions for the Application of the Lisbon Agreement 2010 . International Convention of 1951 on the Use of Appellations of Origin and Denominations of Cheeses (Stresa Convention) Appellations of Origin & Geographical Indications . Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications 2015 . Regulations under the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 2016 IS & GIs (TRIPs System) Indication of Source Geographical Indications Article 1 (1) of The Madrid Agreement for the Repression of Article 22 of TRIPS Agreement : False or Deceptive Indications of “A Member shall, ex officio if its Source on Goods of 1891 : legislation so permits or at the request of an interested party, “ All goods bearing false or refuse or invalidate the registration of deceptive indication by which one a trademark which contains or consists of the countries to which this of a geographical indication agreement applies, or a place with respect to goods not originating situated therein, directly or in the territory indicated, if use of the indirectly indicated as being the indication in the trademark country or place or origin shall be for such goods in that Member is of seized in importation into any of the such a nature as to mislead the public said countries“ as to the true place of origin.” IS & GIs (TRIPs System) Indication of Source Article 1 (1) of The Madrid Agreement for the Repression of Geographical False or Deceptive Indications of Source on Goods of 1891 : Indications Article 22 (1) of the TRIPs Agreement : “ All goods bearing false or “ … indication which identify a good as deceptive indication by which one originating in the territory of a of the countries to which this member, or a region or locality in that agreement applies, or a place territory, where a given quality, situated therein, directly or reputation or other characteristic of indirectly indicated as being the the good is essentially attributable to country or place or origin shall be its geographical origin. “ seized in importation into any of the said countries“ IS & GIs (Geneva Act of Lisbon System) Indication of Source Article 1 (1) of The Madrid Geographical Agreement for the Repression Indications of False or Deceptive Indications of Source on Goods of 1891 : Article 2 (1) (ii) of Geneva Act of the Lisbon Agreement 2015 : “ All goods bearing false or “ ... any indication protected in the deceptive indication by which Contracting Party of Origin consisting one of the countries to which of or containing the name of a this agreement applies, or a geographical area, or another place situated therein, directly indication known as referring to such or indirectly indicated as being area, which identifies a good as the country or place or origin originating in that geographical area, shall be seized in importation where a given quality, reputation or into any of the said countries“ other characteristic of the good is essentially attributable to its geographical origin.” IS & AO (Lisbon System) Indication of Source Appellations of Origin Article 1 (1) of The Madrid Article 2 (1) of the 1958 Lisbon Agreement for the Repression of Agreement for the Protection of False or Deceptive Indications of Appellations of Origin : Source on Goods of 1891 : “... the geographical denomination “ All goods bearing false or of a country, region, or locality, deceptive indication by which one which serve to designate a of the countries to which this product originating therein, the agreement applies, or a place quality or characteristics of which situated therein, directly or are due to exclusively or indirectly indicated as being the essentially to the geographical country or place or origin shall be environment, including natural seized in importation into any of and human factors ....” the said countries“ Geneva Act of the Lisbon Agreement It combines the protections provided in Lisbon Agreement and TRIPS system it is more flexible than Lisbon Agreement. It also allows the members to choose, whether they would like to become a member of Lisbon Agreement and Geneva Act, or of Geneva Act only. The only prerequisite for the members to become a member of Geneva Act is being a member of Paris Convention It extends the strength of TRIPS’ second level protection to products other than wines and spirits It introduces a ground breaking new rule by allowing a product that is originated from a trans-border geographical area to obtain a protection Residual Theory Scope of Protection concerning Geographical Origins Appellation Appellation of Origins of Origins on on Goods Services Indication Wines and Spirits of Source & Other Products on Goods & Services Geographical Indications Geographical on Goods Indications on Services General Advantages of the Protection of Indications of Source . Indications of Source provides the users and consumers with the true origin of the products, so they are protected against false and deceptive conducts; . No registration requirement to create the right. It can even be conducted by the producers by marking their products with the Indication of Source’s logo as a certification mark; . The usage of an Indications of Source can be shared with other goods and services, so the right holders can become inclusive in nature; . The need of Indication of Source protection stimulates provincial and local governments to be more active in providing the protection on their assets; . Establishing a system to protect Indications of Source is easy, flexible, inexpensive and fast. Advantages of the Protection of Indications of Source for Indonesia Protection of Indications of Source for cultural resources of Indonesia would : . raise the reputations of Intellectual Property products originated from Indonesia; . provide better bargain position of Indonesian products in the international market, because of the assured quality and the true geographical origins marked on the products; . promote eco-cultural tourism of Indonesia in the GIs protected regions; . cut the excessive dependency of Indonesia to the developed countries by empowering the quality of cultural based products of Indonesia to compete in the global markets. Advantages of the Protection of Indications of Source in Indonesia . Indications of Source can be regarded as initial protections for protected Geographical Indications; . Indications of Source can provide protection in combination with the protection for genetic resources, traditional knowledge and traditional cultural expressions which are still in the negotiation process in WIPO. For patents which are based on genetic resource or traditional knowledge associated with genetic resource, Indication of Source could mean the implementation of the mandatory disclosure of origin automatically; . Protection of Indications of Source fills the gap of the lack or inclomplete protection for cultural resources which requires sophisticated databases, ministerial arrangement and sui generis new law in national as well as international levels; Indonesian Law Number 20 Year 2016 about Trademarks and Geographical Indications Law on Law on Law on Trademarks Geographical Indications Indications of Source GIs & IS (Indonesian Law 20 Year 2016) Geographical Indications Indications of Source Art. 1 (6)(7)(10)(11), 53 (1)(3), 61, 66, 67, 68 Art. 63, 64 Constitutive system; compulsory registration to enjoy Declaratory system; no registration needed to enjoy protection protection Substantive requirement: a link established by geographic Substantive requirement: depiction of a true origin of a environmental factor/s of origin, including natural factor good/service without direct link with geographic and/or human factor environment. Attribution: particular reputation, quality, and Attribution: a trait of true origin of a good/service characteristic of
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