Legal Protection Implications on Trademark in Indonesia by Comparing the First to Use and First to File Principles

Abstract

Trademark is intangible goods. In the trademark, inherent value is an intangible asset for the owner because the trademark gives ownership rights as the legal subject, namely individuals (natural persoon) or legal entities (recht persoon), so that trademarks become intangible assets. Because the trademark has value, it is appropriate for trademark owners to get legal protection. Legal protection for trademark in Indonesia is only given to trademark owners who register their trademarks for the first time, in the principle, first to file. Currently, Indonesia does not use the principle of first to use, where the first trademark user has protection against the trademark. The application of these two principles has a difference to the implications for legal protection provided specifically on company-owned trademarks. This paper will discuss the differences in the implications of legal protection for company trademarks in Indonesia by comparing the principles of first to use and the principle of first to file. This paper used normative method with an economic analysis of law approach. The results showed that the principle of first to file in trademark registration more fulfilled the principles of rational choice, efficiency, value and utility compared to the principle of first to use.