Jul 26, 2018

Passing Off in Indonesia

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Black’s Law Dictionary defines passing off as “the act or an instance falsely representing one’s own product as that of another in an attempt to deceive potential buyers. Passing off is actionable in tort under the law of unfair competition. It may be actionable as trademark infringement”.

Passing off has three elements, which are:

  • Reputation: the brand’s reputation or goodwill within the goods, name, mark, or other identifying features that associate the public with those particular goods, and distinguishes them from others;
  • Misrepresentation: misrepresentation which would make consumers believe that the products are of a famous brand;
  • Damage: the misrepresentation has caused damage to the famous brand in terms of finance and reputation.

 

There is no stipulation under Indonesian law which explicitly stipulates passing off. Nevertheless, below are prevailing stipulations which can be used as the legal basis related to this issue:

  1. Article 382 bis of Indonesian Penal Code, which states “any person who, in order to establish, to retain or to expand the sale of his/her trade or business or those of the trade business of another commits a fraudulent act of misleading the public or a certain person, shall, if there from some loss for his/her competitors or competitors of other person may arise, being guilty of unfair competition, be punished by a maximum imprisonment of one year and four months or a maximum fine of nine hundred Rupiahs”;
  2. Article 1365 of Indonesian Civil Code, which states "every unlawful act that causes damage onto another person obliges the wrongdoer to compensate such damage”.