scholarly journals Persamaan Unsur Pokok Pada Suatu Merek Terkenal (Analisis Putusan MA Nomor 162 K/Pdt.Sus-HKI/2014)

2015 ◽  
Vol 3 (1) ◽  
Author(s):  
Dandi Pahusa
Keyword(s):  
Supreme Court ◽  
Basic Element ◽  
General Knowledge ◽  
Bad Faith ◽  
The Public ◽  
The Supreme Court ◽  
Directorate General ◽  
Trademark Registration ◽  
The Impact ◽  
Color Composition

Abstract: Equation Basic Element In A Famous Brand (Analysis of the Decision of the Supreme Court Number 162 K / Pdt.Sus-IPR / 2014). Criteria for determining the equation of the constituents in a well-known brand that is the similarity of images, sounds, names, words, letters, numbers, color composition or a combination of these elements, either for goods or services that are similar or dissimilar based on general knowledge of the public, the brand earned a reputation as a massive campaign, and with evidence of the trademark registration in several countries. The impact of the decision of the Supreme Court Number 162 K / Pdt.Sus-IPR / 2014 for brand owners who have registered and well-known to always protect its brand, namely by taking into account the bad faith of the owner of the other brands. If there are other brands that have been registered in the Directorate General of Intellectual Property and published in General News Brands, the owner of the mark that has been registered in advance immediately appealed and the cancellation of the trademark. Abstrak: Persamaan Unsur Pokok Pada Suatu Merek Terkenal (Analisis atas Putusan MA Nomor 162 K/Pdt.Sus-HKI/2014). Kriteria penentuan persamaan unsur pokok pada suatu merek terkenal yaitu adanya kemiripan gambar, bunyi, nama, kata, huruf-huruf, angka-angka, susunan warna atau kombinasi dari unsur-unsur tersebut, baik terhadap barang atau jasa yang sejenis maupun tidak sejenis yang didasarkan pada pengetahuan umum masyarakat, reputasi merek yang diperoleh karena promosi besar-besaran, dan disertai bukti pendaftaran merek tersebut di beberapa negara. Dampak dari putusan Mahkamah Agung Nomor 162 K/Pdt.Sus-HKI/2014 bagi pemilik merek yang telah terdaftar dan terkenal agar selalu melindungi mereknya yaitu dengan memperhatikan adanya itikad tidak baik dari pemilik merek lain. Apabila terdapat merek lain yang telah terdaftar di Dirjen HKI dan diumumkan dalam Berita Umum Merek, maka pemilik merek yang telah terdaftar terlebih dahulu segera mengajukan keberatan dan pembatalan merek tersebut. DOI: 10.15408/jch.v2i1.1848

scholarly journals Penerapan Asas Audi Alteram Et Partem Pada Perkara Judicial review Di Mahkamah Agung

2019 ◽  
Vol 3 (1) ◽  
pp. 37
Author(s):  
Asep Syarifuddin Hidayat
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Public ◽  
Trial Process ◽  
The Supreme Court ◽  
The Law ◽  
The Impact

Abstract.Article 13 paragraph 1 of Act Number 48 of 2009 concerning Judicial Power states that all court hearings are open to the public, unless the Act says otherwise. Therefore, a judicial review trial must be open to the public. If the trial process of the judicial review is carried out in a closed manner, it can be considered a legal defect, because it is contrary to Article 13 paragraph (3) of the Law. The Law of the Supreme Court is not regulated that the judicial review is closed, because in the judicial review there is a need for openness or principle of audiences of parties or litigants must be given the opportunity to provide information and express their opinions, including the defendant as the maker of Legislation invitation under the law, so that the impact of the decision will need to be involved.Keywords: Judicial Review, Audi Alteram Et Partem Principle, Supreme Court, Constitutional Court Abstrak.Pasal 13 ayat 1 Undang-Undang Nomor 48 Tahun 2009 tentang Kekuasaan Kehakiman menyebutkan semua sidang pemeriksaan pengadilan terbuka untuk umum, kecuali Undang-Undang berkata lain. Oleh karena itu,  judicial review persidangan harus dilakukan terbuka untuk umum. Apabila proses persidangan judicial review ini dilakukan secara tertutup, maka dapat dinilai cacat hukum karena bertentangan dengan Pasal 13 ayat (3) Undang-Undang tersebut. Undang-Undang Mahkamah Agung pun tidak diatur bahwa persidangan judicial review bersifat tertutup, karena dalam judicial review perlu adanya keterbukaan atau asas audi alteram et partem atau pihak-pihak yang berperkara harus diberi kesempatan untuk memberikan keterangan dan menyampaikan pendapatnya termasuk pihak termohon sebagai  pembuat Peraturan Perundang-Undangan di bawah Undang-Undang sehingga akan terkena dampak putusan perlu dilibatkan.Kata Kunci: Judicial Review, Asas Audi Alteram Et Partem, Mahkamah Agung, Mahkamah Konstitusi.

scholarly journals The Implementation of International Trademark Registration in Indonesia Post-Ratification of Madrid Protocol

2018 ◽  
Vol 14 (2) ◽  
pp. 51-60
Author(s):  
Andry Setiawan ◽  
Dewi Sulistyaningsih ◽  
Leo Bernado Aglesius
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Member Country ◽  
Legal Basis ◽  
Registration System ◽  
The Public ◽  
International Bureau ◽  
Directorate General ◽  
Trademark Registration ◽  
The Impact

In early October 2017, the Indonesian government, represented by the Directorate General of Intellectual Property of the Ministry of Justice and Human Rights, has officially ratified the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol). The ratification is contained in the Presidential Regulation No. 92 of 2017 on Ratification of Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, 1989. The Presidential Regulation shall be the legal basis of enforcement that regulates the international trademark registration in Indonesia. The concept offered through the international trademark registration system based on the Madrid Protocol is its practicality which passes only one examination, one Language, one currency and it is integrated by the International Bureau administered by WIPO without changing the sovereignty of each member country which ratifies the system. The objective of this paper is to find out how the trademark registration is implemented based on the Madrid Protocol after its ratification in Indonesia and how the system will impact. The results of this paper will be beneficial for the public so that they know the mechanism of the international trademark registration and the impact of this system

The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd

2020 ◽  
Author(s):  
Sayantan Bhattacharyya ◽  
Moksh Ranawat
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Criminal Proceedings ◽  
The Public ◽  
Supreme Court Of India ◽  
It Impacts ◽  
The Supreme Court ◽  
The Impact ◽  
Considerable Period

ABSTRACT The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the ‘public flavour’ standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

ON THE CONCEPT AND CONTENT OF “ANOTHER ORDER OF PRE-TRIAL SETTLEMENT OF DISPUTES, ESTABLISHED BY THE AGREEMENT”

2021 ◽  
Vol 11 (4) ◽  
pp. 282-298
Author(s):  
D.G. FILCHENKO ◽  
E.A. EVTUKHOVICH
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Dispute Settlement ◽  
Critical Assessment ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Characteristic Features ◽  
Dispute Settlement Procedure ◽  
Settlement Of Disputes ◽  
The Impact

The article analyzes the provisions of the arbitration procedural legislation and the practice of its application on a different pre-trial dispute settlement procedure established by the contract. A different pre-trial procedure is considered as an alternative to the general claim procedure for resolving disputes. The characteristic features of a different pre-trial order have been revealed. The authors summarized the practice of arbitration courts, highlighting other demanded pre-trial dispute settlement procedures. In particular, examples of atypical other methods of dispute settlement are provided. Separately, the issue of the admissibility of the cancellation of the general claim procedure for the settlement of disputes by the agreement was considered. An independent subject of the authors’ analysis was mediation as a pre-trial dispute settlement procedure. The work also focuses on the impact of a different pre-trial dispute settlement procedure on the course of the limitation period. The article discusses the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22 June 2021 No. 18 “On Some Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings”. Some of the recommendations of the Plenum of the Supreme Court of the Russian Federation received critical assessment. The authors note the existing contradictions in the legislation and possible ways to overcome them, formulate individual conclusions as a result of studying the materials of the practice of arbitration courts.

scholarly journals Passing Off yang Dilakukan Oleh Pihak yang Beritikad Tidak Baik Melalui Pemakaian Nama Perseroan Terbatas

2020 ◽  
Vol 23 (02) ◽  
pp. 100-118
Author(s):  
Kimham Pentakosta ◽  
Elly Hernawati
Keyword(s):  
Government Regulation ◽  
Limited Liability ◽  
Limited Liability Company ◽  
Bad Faith ◽  
Passing Off ◽  
Directorate General ◽  
Trademark Registration ◽  
The Republic ◽  
The Government ◽  
Legal Administration

This paper focuses on the similarity of functions between Trademarks and Limited Liability Company Name, namely quality assurance function, which enables both to provide a guarantee on the reputation of goods and/or services offered to the consumer. Such similarity of functions between those two different legal terminology opens a loophole for any party, based on bad faith, to conduct passing off towards a registered trademarks owned by another party through the use of a limited liability company name. This paper shows the urgency of a harmonization and integration between the mechanism of applying for Trademark registration and the submission of the name of a limited liability company in Indonesia. Therefore, this paper will examine and criticize the laws and regulations relating to the two terminology above, inter alia the Law Number 20 of 2016 regarding Trademarks and Geographical Indications and the Government Regulation Number 43 of 2011 regarding Procedures for Filing and Use of Limited Liability Company Name. This paper concludes that the government of the Republic of Indonesia must immediately amend the regulation on the requirements for submitting the name of a limited liability company, by requiring the Directorate General of General Legal Administration to reject the name of a limited liability company that uses a name that has been registered as a brand by another party.

scholarly journals The Impact of the Voting Rights Act on American Political Parties

1994 ◽  
Vol 14 ◽  
pp. 565-575
Author(s):  
Howard A. Scarrow
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Voting Rights ◽  
Voting Rights Act ◽  
Legal Standards ◽  
The Past ◽  
The Supreme Court ◽  
The Impact

The weakening of American political parties has been a theme featured in the writings of political scientists for the past several decades. This essay is addressed to developments which may further that decline-developments which have undermined the very purpose which American political parties are said to serve. I refer to legal standards which were established by the Supreme Court in 1964, and which have since been expanded by the Court and then incorporated into the Voting Rights Act of 1965 and its amendment in 1982.

scholarly journals Glosa do wyroku Sądu Najwyższego z dnia 17 października 2018 r. (II KK 73/18)

2020 ◽  
Vol 29 (1) ◽  
pp. 291
Author(s):  
Cezary Kulesza
Keyword(s):  
Supreme Court ◽  
Criminal Liability ◽  
Civil Law ◽  
Complex Behaviour ◽  
The Supreme Court ◽  
Bank Employees ◽  
The Impact

<p class="PreformattedText">The gloss refers to the problem of the impact of bank employees’ performance on borrowers’ liability for fraud. The author approves the view formulated in the thesis of the Supreme Court that the employees of the injured bank were obliged to exercise special diligence in checking the accuracy of the documents submitted by the accused necessary to obtain a loan. The position taken by the Supreme Court in the commented judgement can be considered as at least a partial departure from the previous jurisprudence of the Supreme Court accepting that the victim’s contribution to the occurrence of fraud is not relevant to the responsibility of the perpetrators. The author, starting from the results of victimological research, accepts the view that the basis of criminal liability for fraud is the complex behaviour of the perpetrator (extraneous) and representatives of the injured bank (intraneus) and their mutual activity. In the last part of the commentary, the author indicates the specific obligations of banks when granting loans. He also emphasizes the inclusion in civil law of the victim’s contribution to damage as a basis for its mitigation.</p>

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