Requisitoire : Law Enforcement Vol.
No.
July 2024, pp.
ISSN: 2986-3988 (Onlin.
DOI: 10.
59651/relae A Empirical legal study of the potential for criminal acts of selling other people's branded products without permission on Tiktok shop Widhia Astuti Manoppo Fakultas Hukum.
Universitas Negeri Gorontalo.
Gorontalo.
Indonesia
Article Info
ABSTRACT
Article history:
Online trading business actors currently allow for violations of registered trademark rights, especially on the TikTok Shop ecommerce platform.
Illegal distributors are a business scheme that uses other people's registered trademarks without permission, either in product photos in their online stores or in the similarity of the products traded.
This study aims to examine legal protection for brands and the potential for trademark violations in online trading on the TikTok Shop e-commerce.
The research method in this study is empirical juridical, data collection is carried out by means of direct observation and interviews with informants who meet the sample criteria, informants are selected using a purposive sampling technique.
The research informants in this study numbered 2 people who met the The informant's name and product brand are private with a certain code to ensure data confidentiality and informant security.
Currently.
Indonesia has legal protection for brands, namely Law Number 20 of 2016 concerning Brands and Geographical Indications.
Actions taken by illegal distributors without permission from the registered brand owner have the potential to violate registered brand rights, namely being subject to a maximum sentence of 5 years and/or a maximum fine of 5 billion rupiah.
Received : Mar 24, 2024 Revised : Apr 27, 2024 Accepted : Jun 28, 2024 Keywords:
Trademark Rights.
Illegal Distributors.
Registered Trademarks.
TikTok Shop.
This is an open access article under the CC BY-NC license.
Corresponding Author:
Widhia Astuti Manoppo Fakutas Hukum.
Universitas Negeri Gorontalo Jl.
Jend.
Sudirman No.
Dulalowo Tim.
Kec.
Kota Tengah.
Kota Gorontalo.
Gorontalo 96128 Email: Widhiamanoppo19@gmail.
INTRODUCTION
Digital transformation has driven a paradigm shift in conventional buying and selling transactions towards digital platforms such as TikTok Shop which are much more practical and efficient (Sativa.
The number of active TikTok users reached 109.
9 million in 2022 in Indonesia, making it a very potential market for business actors on this platform to market products and conduct online buying and selling on their e-commerce, namely TikTok Shop (Majid, 2.
However, the rapid growth of e-commerce is accompanied by the potential for rampant violations of intellectual property rights, especially related to the use of trademarks without permission.
Intellectual property rights or commonly known as IPR/HKI are exclusive rights to human works of thought, be it innovations or creations produced by human thought that have economic and legal aspects that need to be regulated and protected so that these rights, ideas or concepts can be protected (F.
Hikmah et al.
, 2.
Intellectual property rights are divided into two generally recognized groups.
Journal homepage: https://ejournal.
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namely Industrial Property Rights and Copyrights & Neighboring Rights.
Industrial Property Rights as part of IPR are intended to limit the parts that are the object of Industrial Property Rights protection such as exclusive rights to brands.
Indonesia already has a legal basis for intellectual property rights, especially industrial property rights, namely Law Number 20 of 2016 concerning trademarks and geographical indications.
Law of the Republic of Indonesia of 2016 concerning Trademarks and Geographical Indications.
This classification is not without reason, where it is adopted from several related international conventions.
As conventionally divided by international organizations part of the United Nations, the World Intellectual Property Organization / WIPO which was established based on the Convention Establishing the World Intellectual Property Organization signed on July 14, 1976 in Stockholm and came into effect in 1970 and the practices of developed countries.
IPR is classified into two categories, namely industrial property and copyrights and related rights (Neighboring Right.
(Prasetyawati, 2.
Intellectual property is not a standard definition, in this case the WIPO Opinion in General Information states (WIPO, 1.
: AuNo international treaty defines these concepts, and the various countries diffe form each other on several important points.
It is not posibble, therefore, to give universally accepted definitions of the various forms of international propertyAy.
There is no concrete definition of the concept of industrial property rights in international conventions because each country has a different concept of these matters, but as a guideline, several definitions put forward by Cornish state Ricketson & Richardson .
: AuThere is no single generic term that satisfactorily covers them all.
Traditionally, the term Auintellectual propertyAy was used to refer to the rights conferred by the grant of a copyright in literary, artistic and musical worksAy.
Traditionally, the term "intellectual property" is often associated with copyright in literary, artistic, and musical works.
However, in international agreements such as TRIPs (TRIPS Agreemen.
, the scope of intellectual property is much broader.
TRIPs, which has been ratified by Indonesia through Law Number 7 of 1994, defines intellectual property to include copyright, trademarks, geographical indications, industrial designs, patents, integrated circuit layout designs, trade secrets, and also regulates anti-monopoly practices in contractual licensing (Setyoningsih, 2.
Within the framework of civil law, industrial property rights function as an extension of the concept of traditional property rights which have so far focused on tangible objects in property law.
Thus, property rights to intellectual works can be recognized and legally protected as intangible property rights that are closely related to capital in commercial law in Indonesia.
The systematics of industrial property rights in the form of intangible property such as business reputation, copyright and industrial property rights and tangible property such as money, physical goods and the like.
As lex specialis, industrial property law in Indonesia specifically regulates intellectual property rights that are not covered by the Civil Code.
The objects of intellectual property law protection are immaterial, namely non-physical rights to the results of human creativity, such as copyright to written works, music, or designs.
The legal subjects in copyright can be individuals .
ingle author.
, groups .
eams of author.
, or other parties who obtain derivative rights .
ranslators, adapter.
However, the rights of derivative parties still depend on the original copyright owned by the creator.
One of the industrial property rights that is closely related to violations of intellectual property law in online buying and selling by illegal distributors is the violation of identical trademarks.
The definition of a brand according to Law Number 20 of 2016 concerning Trademarks and Geographical Indications which revokes Law No.
15 of 2001 concerning Trademarks.
Article 1 paragraph 1 states:
A trademark is a sign that can be displayed graphically in the form of an image, logo, name, word, letter, number, color arrangement, in the form of 2 .
dimensions and/or 3 .
dimensions, sound, hologram, or a combination of 2 .
or more of these elements to distinguish goods and/or services produced by a person or legal entity in the trading of goods and/or services.
A trademark is a valuable asset for a business because it helps build identity, consumer loyalty, and added value for the products or services offered.
A trademark can take various forms, from a simple image, name, word, to a distinctive combination of colors or sounds.
In essence, a trademark must be easily recognizable and leave a strong impression in the minds of consumers.
Meanwhile.
Article 1 paragraph 2 of this Law states: "A Trademark is a Brand used on goods traded by a person or several people together or a legal entity to distinguish them from other similar goods".
Article 3 of the Law states that "Rights to a Trademark are obtained after the Trademark is registeredAy.
Where the rights to the brand itself are explained in Article 1 paragraph 5 which reads: AuThe right to a brand is an exclusive right granted by the state to the owner of a registered brand for a certain period of time by using the brand themselves or giving permission to another party to use itAy.
In a Requisitoire : Law Enforcement.
Vol.
No.
July 2024: 1-8
CCRIA
ISSN: 2085-7233 (Prin.
, 2986-3988 (Onlin.
A creation, both industrial property rights and copyright and related exclusive rights are attached, namely moral rights and economic rights.
Moral rights are rights that are eternally attached to the creator, for example, continuing to include or not include his name on a work that is later partially changed by someone else, using his alias or pseudonym, changing his creation, changing the title and subtitle of the creation and maintaining his rights in the event of distortion of the creation, mutilation of the creation, modification of the creation, or things that are detrimental to the honor or reputation of the creator.
While economic rights are rights inherent in the creator to allow or not his work to be changed, reproduced, marketed which will generate money from the results of the work.
The rise of online buying and selling businesses today violates trademarks between registered trademark owners and other parties who without the right to use trademarks that are essentially or wholly similar to goods and/or services of the same type as the registered trademark owner.
One of the prominent phenomena in TikTok Shop is the practice of reselling other people's products without official permission from the trademark owner.
This business model, which is often referred to as an illegal distributor, allows business actors to make significant profits by taking advantage of the popularity of a brand without having to bear production or distribution costs.
This practice not only harms the legitimate brand owner, but also has the potential to confuse consumers and damage the overall market reputation.
Legal protection for brand rights holders as part of IPR that has economic and moral rights needs and is important to protect in order to appreciate the work and efforts of brand owners and create a healthy business competition environment.
Therefore, business actors who have registered their brands have an interest in obtaining legal recognition and protection for the registered brand rights.
With legal protection, the rights of other individuals to brands are guaranteed to be protected, thus preventing other business actors from cheating and unfair business competition.
Research by Nita Anggraeni.
Istiqomah and Danu .
conducted a similar study that examined the potential for geographical indications in the Banten area and its problems (Anggraeni et al.
, 2.
A significant difference lies in the object of study where this study will empirically examine the potential for brand infringement that occurs on online buying and selling platforms such as TikTok Shop, although there are similarities in the research methods used.
Rani Dewi Kurniawati and Rian Kurniadi's .
research also examines IPR which focuses on normative studies on legal protection of trade secrets which are also part of IPR, specifically the group of Industrial Property Rights (Kurniawati & Kurniadi, 2.
which is different from this research with a focus on the study of potential violations of trademark Research from Jemiran .
which examines violations of industrial designs which are also part of IPR protection, especially industrial property rights (Jemiran, 2.
is different from this research which focuses on potential violations of trademarks.
Research from Patrichia Weyni Lasut .
also examines the same thing, namely violations of trademarks (Lasut, 2.
this research is different from previous research both in terms of the methods used and the focus of the study where this research will explore the potential for violations of trademarks in online buying and selling at TikTok Shop.
This study also conducted initial observations or observations of sports products branded X that were resold by other parties who were not brand owners so that this finding has the potential for reselling practices by third parties at prices much higher than the official manufacturer's price on other TikTok Shop online store accounts that are not official brand owner accounts.
Significant price differences and the use of photos with identical brands indicate potential violations of intellectual property rights, especially related to the use of trademarks without permission.
This practice not only harms producers in terms of income, but also has the potential to confuse consumers.
This research is important to be able to examine how the legal protection of trademark rights applies in Indonesia and a study of the potential for trademark violations in online buying and selling activities on TikTok Shop.
Indonesia is a country that legitimizes law as the highest commander in its written constitution, the 1945 Constitution of the Republic of Indonesia.
Article 1 paragraph 3, that the state of Indonesia is a state of law, the 1945 Constitution of the Republic of Indonesia.
Article 1 paragraph 3.
According to Jimly Asshiddiqie in Achmad Irwan Hamzani .
, there are twelve important characteristics of a state of law, namely the supremacy of law, equality before the law, the principle of legality, limitations of power, independent executive organs, free and impartial justice, state administrative justice, state administrative justice, protection of human rights, democratic, a means to realize state goals and transparency and social control.
Legality is a principle that develops in pure legal theory, in the concept of a state of law everyone must be subject to applicable law including leaders in a country including laws governing IPR, especially violations of trademarks.
Article 1 paragraph 1 of the Criminal Code states that an act cannot be punished, except based on the strength of existing criminal law provisions.
Empirical legal study of the potential for criminal acts of selling other people's branded products without permission on Tiktok shop (Widhia Astuti Manopp.
A ISSN: 2085-7233 (Prin.
, 2986-3988 (Onlin.
Therefore, it is necessary to regulate an act in a specific law so that it can be implied.
The legal basis for violations of trademarks in Indonesia has been regulated in Law Number 20 of 2016 concerning trademarks and geographical indications.
Although ignorance of the law or statutory regulations cannot free someone from legal claims which we commonly know as the postulate "igronantia iuris neminem excusat" (HSB, 2.
However, violations and crimes can be caused by ignorance of the law, according to Syamsarina .
society is also a factor that greatly influences the functioning of the law, if people do not know and do not follow the law, the law will not work properly (Syamsarina et al.
Therefore, efforts need to be made to overcome violations, especially against trademark rights.
According to Baharuddin Lopa in Arif Rohman .
(Rohman, 2.
there are 5 preventive steps as an effort to overcome criminal acts, one of which is increasing legal education to equalize people's legal Therefore, this research is important to be conducted to increase public awareness of the potential for violations of trademark law in online buying and selling businesses in e-commerce, especially the TikTok Shop platform.
METHOD
This study uses an empirical legal method which is a legal research that examines applicable legal provisions and what happens in reality in society or research conducted on the actual conditions that occur in society with the intention of finding facts that are used as research data which are then analyzed to identify problems that ultimately lead to problem solving (Benuf et al.
, 2.
Data collection was carried out by means of interviews and direct observation of the online buying and selling phenomenon at TikTok Shop as a primary data source in this study, interviews were conducted in a semi-structured manner where the questions in the interview were not specifically determined but the questions would direct the informant to provide the information needed in this study.
The informants in the study were determined using the purposive sampling technique which is a random sampling method with specific criteria that match the research case.
The criteria set for the informant are online buying and selling business actors at TikTok Shop, buying and reselling a product on the TikTok Shop e-commerce.
The sample in this study consisted of 2 informants who met the sample selection criteria.
As a form of protection for the privacy and data of informants, the product name and brand are coded with certain initials in this study.
The secondary data sources used in this study consist of three types, namely primary legal materials consisting of related laws and regulations, secondary legal materials such as scientific journals and related literature.
The data that has been collected is analyzed so that it is known whether the facts found in the study include potential IPR violations, especially in violations of trademark rights and how national law protects the rights to the trademark.
RESULTS AND DISCUSSION
Researchers conducted observations on the TikTok Shop platform and tried to trace the existing phenomenon that many online shop accounts that are not the original owners of the trademark market the same products at prices much higher than the original accounts in the same online shop, namely TikTok Shop.
This certainly raises speculation about the business scheme being run.
On the TikTok Shop platform, there are several business models that are indeed legally run, such as selling products as official distributors of brand owners, dropshipping, namely the seller receives orders from consumers then the order is forwarded to the product owner so that this business model does not need to have product stock to be sent because the main owner of the product will be sent, this business model has systematically given a license to others to market the product both in the use of product photos and product brands in the promotional stage (Anugrah et al.
, 2.
However, business schemes such as illegal distributors still often occur on online shop platforms such as TikTok Shop, illegal distributors are people who buy a product in large quantities from the brand owner/manufacturer and then resell it at a much higher price (Moniung, 2.
This business scheme can generate much greater profits than other online buying and selling business models because the perpetrators can sell and promote prices according to their wishes.
However, it should be emphasized that the promotion process carried out uses product photos and brands from the original owner so that if permission is not obtained from the original owner either in the form of an Requisitoire : Law Enforcement.
Vol.
No.
July 2024: 1-8
CCRIA
ISSN: 2085-7233 (Prin.
, 2986-3988 (Onlin.
agency agreement or other related licenses, the potential for trademark infringement is very possible considering that this act has been regulated in positive law in Indonesia.
Table 1.
Informant Profile Initials Age Gender Male Female Address Kelurahan Cilincing.
Kecamatan Cilincing.
Jakarta Utara Kelurahan Ciwaringin.
Kecamatan Bogor Tenga.
Bogor Product Categories Brand Original Product Purchase Price/Pcs (R.
Product Selling Price/Pcs (R.
Women's Fashion Clothing Sports Equipment Based on an interview with the first informant with the initials An, a 25-year-old man residing in Cilincing Village.
Cilincing District.
North Jakarta, an online entrepreneur in the women's fashion clothing sector who buys products from the original owner in large quantities.
The brand of women's fashion clothing products purchased by this informant is quite well-known in the category of similar products, so it is easy to recognize and promote.
In the promotion process, the logo or brand of the product was not changed and was clearly visible in the product category and product photos marketed in the TikTok Shop online store.
The informant bought the product at a unit price of 50,000 rupiah and resold it for 150,000 rupiah.
The informant was completely unaware of the legal violations committed, especially trademark violations.
This business has been running for more than 5 years and there have been no problems or complaints to the authorities regarding trademark violations.
The second informant with the initials Si, a 23-year-old woman living in Ciwaringin Village.
Bogor Tengah District, the informant is an online entrepreneur who sells sports products, some of the products sold such as pull-up bar sports equipment are purchased in large quantities from the brand owner or original manufacturer which are then resold at the same online store, namely TikTok Shop, with no previous agreement or license, the informant uses the product brand and product photos that are the same as the original owner of the product and brand.
The informant bought the product at a unit price of 56,000 rupiah which was then resold for 160,000 rupiah at the TikTok Shop online store.
The informant was completely unaware of the existence of the Law on Trademarks and so far felt safe running a business like this which she had been doing for more than 3 years.
1 Regulation of Trademark Rights in the National Legal Framework Better legal protection for brand owners and consumers is needed, because building a reputation and/or popularity of a brand requires a lot of effort and time.
A brand is a sign that can be displayed graphically in the form of images, logos, names, words, letters, numbers, color arrangements, in 2 .
dimensions and/or 3 .
dimensions, sound, hologram, or a combination of 2 .
or more of these elements to distinguish goods and/or services produced by individuals or legal entities in the trading of goods and/or services.
Indonesia has enacted laws and regulations governing this, namely Law Number 20 of 2016 concerning Trademarks and Geographical Indications which revokes Law Number 15 of 2001 concerning Trademarks.
A brand needs to be registered by the brand owner in order to obtain rights to the brand.
However, there are some brands that cannot be registered as stated in Article 20 of this Law.
A brand cannot be registered if: It is contrary to state values, law, morals, religion, or public order.
Exactly the same or similar to other existing brands.
Misleading consumers about the origin, quality or type of Contains claims that do not correspond to the quality or benefits of the product.
Not unique or differentiating the product from other products.
Is a common name or symbol that is widely used.
An application for trademark registration can be rejected if the mark uses or resembles the name, symbol or sign of another person, country or institution without written permission from the legal owner and the application is rejected if it is submitted by an applicant who has bad intentions.
In situations where a trademark has been registered, it gets legal protection for 10 years from the date of receipt and can be extended again for the same time and is submitted within 6 months before the end of the protection period.
An extension of time can also be submitted 6 months after the end of the protection period with fees and fines equal to the renewal fee.
The application will be approved if the applicant attaches a certificate stating that the mark is still used on goods or services in accordance with what is stated on the mark certificate and that the goods/services are still being Empirical legal study of the potential for criminal acts of selling other people's branded products without permission on Tiktok shop (Widhia Astuti Manopp.
A ISSN: 2085-7233 (Prin.
, 2986-3988 (Onlin.
In this Law, there is an exception for the extension of a registered trademark if the registered trademark is in the form of a logo or symbol of a company or legal entity, then it is sufficient to pay the cost of extending the registered trademark within a period of 6 .
months before the end of the protection period for the trademark, as long as there is no dispute regarding the extension of the trademark in question.
The rights to a registered trademark can be transferred or assigned due to inheritance, will, endowment, grant, agreement or other reasons permitted by laws and regulations.
Article 42 of this Law also regulates licensing where the owner of a registered trademark can grant a license to another party to use the trademark either in part or in whole for all types of goods and/or The license agreement must be registered with the minister with a fee which is then announced in the official trademark news, but if it is not registered, it will not have legal consequences for the third party receiving the license, the license agreement is prohibited from containing provisions either directly or indirectly that have detrimental effects on the Indonesian economy or hinder Indonesia from mastering or developing technology.
The deletion of a registered trademark can be carried out by and/or the submission of the trademark owner or his/her attorney to the minister with the approval of the licensee if they have been bound by a license agreement or are expressly stated in the license agreement that they agree to set aside the existence of such agreement, the deletion of a trademark can also be carried out by the initiative of the minister if it has similarities in principle and/or in its entirety with geographical indications, is contrary to state ideology, laws and regulations, morality, religion, decency and public order, has similarities in its entirety with traditional cultural expressions, intangible cultural heritage or names or logos that are already hereditary traditions, the deletion is carried out by the minister after receiving a recommendation from the trademark appeal commission.
However, if there is an objection, the trademark owner can file an appeal with the State Administrative Court if rejected, they can file a cassation with the Supreme Court.
The deletion of a trademark can also be carried out by an interested third party if the trademark has not been used for 3 years, this can occur due to trade, import and other prohibitions stipulated by certain applicable regulations.
In the event of a dispute, the brand owner can file a lawsuit with the Commercial Court if they use a Trademark that is essentially or entirely similar to the same goods and/or services without the right, the lawsuit can be in the form of compensation or termination of all activities related to the brand.
If there is disagreement with the decision, an appeal can be filed within a maximum of 14 days after the decision is pronounced to the disputing parties.
A Judicial Review/PK can be filed against a Commercial Court decision that has permanent legal force.
In addition to litigation resolution, dispute resolution can also be carried out through arbitration or other The criminal provisions in this Law, especially regarding trademarks, are regulated in Articles 100 and 102 where this criminal act is a complaint offense, in Article 100 paragraph 1 for anyone who without the right uses a trademark that is the same in its entirety as a registered trademark owned by another party for similar goods and/or services produced and/or traded, will be subject to a maximum prison sentence of 5 years and/or a fine of 5 billion rupiah.
Meanwhile.
Article 100 paragraph 2 if there is a similarity in principle with a registered brand, the maximum penalty is 4 years and/or a fine of 2 billion rupiah.
Article 100 paragraph 3 if the type of goods traded causes health problems, environmental problems, and/or human death, the maximum penalty is 10 years and/or a fine of 5 billion rupiah.
Article 102 states that anyone who trades goods and/or services and/or products that are known or reasonably suspected of knowing that the goods and/or services and/or products are the result of a criminal act as referred to in Article 100 and Article 101 shall be punished with imprisonment for a maximum of 1 year or a maximum fine of 200 million rupiah.
2 Potential Trademark Infringement in Online Buying and Selling on TikTok Shop Digital business includes all trading activities carried out electronically, from product offerings, payment transactions, to shipping goods, through online platforms (N.
Hikmah, 2.
Various business schemes allow for unfair competition practices, especially in the current development of digital business (Effendi, 2.
The business scheme as an illegal distributor who buys products from the main producer in large quantities and then re-markets them in higher quantities indicates a violation of several provisions in IPR protection and other related regulations.
Observations made on the TikTok Shop online business found that there were many online store accounts that were not official accounts of brand owners selling the same products at different price differences.
Requisitoire : Law Enforcement.
Vol.
No.
July 2024: 1-8
CCRIA
ISSN: 2085-7233 (Prin.
, 2986-3988 (Onlin.
A Although the online buying and selling business on e-commerce such as TikTok Shop has offered several legal and permitted business schemes such as affiliate programs offered to content creators to promote certain products, then if people buy from the video link listed they get a certain The dropship and reseller business schemes that have permission from the brand owner, clearly this does not violate the norms that have been in effect in Indonesia.
However, there are business schemes that have the potential to violate certain rules in Indonesia within the framework of positive law, which in this study the researcher calls illegal distributors.
Distributors who are people who distribute products or services from producers to consumers directly certainly provide the potential for tempting profits.
Several regulations related to products and/or services that are closely related to brands so that violations are possible if the license to a third party "illegal distributor" of the rights to the brand is "not agreed and registered" in accordance with the provisions of Article 3 in conjunction with Article 41 in conjunction with Article 42 in conjunction with Article 43 of Law No.
20 of 2016 concerning brands and geographical indications.
The consequences of the violation of the law committed, the perpetrator can be punished, when fulfilling the subjective and objective elements (Nainggolan, 2.
The actions of illegal distributors who openly sell products with well-known brands in their product categories that belong to other people by posting photos of the products in their TikTok Shop online store clearly violate the provisions of the applicable trademark law.
Article 100 paragraph 1 states that anyone who uses a brand that is identical in its entirety to a registered brand belonging to another party for similar goods and/or services produced and/or traded will be subject to a maximum prison sentence of 5 years and/or a fine of 5 billion rupiah.
CONCLUSION
Legal protection of trademark rights in Indonesia has a legal basis such as Law Number 20 of 2016 concerning Trademarks and Geographical Indications which protects registered trademarks for 10 years since the trademark was registered.
The potential for violation of IPR law in online buying and selling at TikTok Shop carried out by illegal distributors "without permission from the registered trademark owner" using registered trademarks in product photo promotions in their online stores or products traded have overall similarities with original products, then this act has the potential to violate the provisions of Article 100 paragraph 1 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications where the perpetrators can be held accountable with a maximum criminal penalty of 5 years and/or a fine of 5 billion rupiah.
Further research is expected to use quantitative-based research methods to further confirm the results of this study on similar problems, especially those that focus on brands as industrial property rights or discuss the philosophical study of brand rights, especially in the constitution in force in Indonesia and the realization of justice and people's welfare from the focus of the study being studied.
REFERENCES