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YouTube Channels in the Framework of Trademark Legislation in Indonesia

A&CO Law Office Indonesia


Introduction

In the current era, the profound impact of YouTube and social media is undeniable. Notably, individuals who once held prominence in traditional media, such as actors and celebrities, have shifted their focus to YouTube. YouTube's unique attributes, including its accessibility at any time and place and its wireless nature—distinguishing it from traditional television—place it beyond the oversight of the Indonesian Broadcasting Commission (KPI). The absence of specific regulatory constraints on YouTube injects a breath of fresh air into the creative process. Exemption becomes a factor for content creators as it lets them be creative without too many limitations. As of October 2023, Indonesia ranks fourth after India, the United States, and Brazil, with approximately 139 million users[1], predominantly in the 19-25 age range[2]. Prominent examples of Indonesian YouTubers include Jess No Limit, Zuni and Family, Ria Ricis, and Atta Halilintar[3], which consistently top viewership and subscriber rankings. Moreover, Indonesia ranks fourth globally in terms of YouTube users, underscoring the platform's widespread popularity.

 

Your ”YouTube” and Intellectual Property Law

Talking about YouTube and creators, it always includes the important parts of making money and having a good reputation. A YouTube channel's reputation depends on how good and how many videos it has, and also on how well-known the creator is in the YouTube community.  Under the realm of intellectual property rights, the protection extends beyond copyright, which safeguards videos, photos, songs, or any creative work disseminated through YouTube automatically, as long as they are original. This discussion now turns its focus to industrial property, specifically trademarks. Trademarks are essential in protecting brands, including the names of YouTube channels. To simplify, the process involves formally registering the channel's name as a trademark, while simultaneously applying copyright protection to the showcased videos, songs, or pictures (re: the content).

Benefits of Trademarking your YouTube Channel

Within the context of a YouTube channel, the effective integration of fundamental trademark elements is evident. A mark, defined as a representation distinguishing goods or services in commercial activities from one undertaking to another undertaking[4], inherently justifies protection, particularly when aligned with economically significant endeavors.  In the recital of Indonesian trademark law, trademarks play a crucial role in ensuring fair competition, justice, and consumer protection in the domestic industry within the current era of global trade[5].  Given the mentioned awareness and development herein, the author believes that the benefits of registering a trademark for your YouTube channel include, inter alia:

  • The reputation earned by YouTubers adds to YouTube's growing importance as a valued asset. Aside from the economic value obtained from content monetization, the channel's name has become an important asset tied to its overall quality and reputation, establishing a strong bargaining position for economic objectives, such as collateral. These assets have significant value and have an impact on the development of creative economy practices.

 

  • The essence of trademark law is its function as a representation in economic activity that distinguishes goods or services between undertakings. The registration of a trademark serves as legal proof, demonstrating the proprietorship of a mark in Indonesia. This process extends beyond the mere "name" conveyed through words in the YouTube channel; it also encompasses watermarks, logos, sounds, and even slogans regularly used in YouTube videos. It is important to keep in mind that trademark registration works on a territorial basis, which means that protection is only valid for the registered trademark within the jurisdiction where the registration was filed, namely Indonesia.

 

  • The registration of a trademark for a YouTube channel serves as a tool to avoid trademark infringement. Simply put, unauthorized use of the trademark by others can occur, which may have economic value or, conversely, damage the reputation of the established YouTube channel. In such cases, enforcement can be pursued by reporting violations since YouTube itself provides a platform (https://support.google.com/youtube/answer/6154228?hl=en ) for users to report trademark infringements. This allows YouTube to remove content that violates these rights. While this may not carry legal weight as defined under Indonesian Trademark Law, it proves to be an effective tool for users in protecting trademark rights.

 

  • Protecting the trademark is essential for the YouTuber's growth in business, for example merchandising. As a result, it is advisable to seek protection ahead of time to avoid possible unauthorised use or registration of the YouTube name by others in the Indonesian trademark registry. Unlike the trademark regime in the US, which follows the first-to-use principle, trademark law in Indonesia adheres to the first-to-file principle. This means that a 'business plan' for trademark use can be registered as long as the usage can be proven, at least within the grace period of three consecutive years of using the trademark in the trade of goods/services, as stipulated in Article 74 (1) of the Trademark Law, to avoid non-use cancellation (deletion) lawsuits.

 

Choosing a Distinctive Name for Successful Trademark Registration in Indonesia?

Choosing a unique name, especially one's own, increases the likelihood of a successful trademark registration in Indonesia, compared to common or descriptive names. For instance, a YouTube channel named "The Best Cooking Channel" is descriptive, explicitly indicating the focus on sharing cooking-related content. It also contains elements that could be misleading about its quality. Please note that under Indonesian law[6], there are limitations to the registration of such marks, as follows.:

  1. contradicts to the State ideology, laws and regulations, morality, religion, decency, or public order;
  2. is similar to, related to, or merely mentioning the goods and/or services being applied for registration;
  3. contains any element which may mislead the public in respect to its origin, quality, type, size, variety, intended use of goods and/or services being applied for registration or constitute a name of protected plant variety for similar goods and/or services;
  4. contains description that does not correspond to quality, or efficacy of produced goods and/or services;
  5. is devoid of any distinctive character; and/or
  6. constitutes a generic name and/or public sign.

When Should You Trademark a YouTube Channel?

Regarding when a YouTuber (re: the content creator) should register their trademark, it depends on the circumstances. The first-to-file system emphasizes early registration, which means the sooner the better.  However, one must also assess and consider any potential obstacles like objections or rejections according to provision under Article 21 Indonesian Trademark Law[7]. Therefore, conducting a trademark search is also advisable to assess the potential registrability of the YouTube channel name.

To register a trademark for a YouTube channel in Indonesia, one can pursue registration, for example, under Class 42 NICE Classification, specifically for services such as “Hosting and maintenance of online communities featuring audio-visual content in the fields of news, entertainment, films, sports, comedy, drama, and music; Hosting and maintenance of online communities featuring audio-visual content in the fields of news, entertainment, films, sports, comedy, drama, and music – and/or similar services”.

 

Conclusion

The increasing popularity of YouTube channels not only heightens public awareness regarding copyright protection but also underscores the importance of trademark rights. In this context, the protected elements of a YouTube channel extend beyond its name to encompass other distinctive features such as the logo (including the profile picture and watermark), sound, and any renowned slogans affiliated with the channel.

The goals of registering a trademark for a YouTube channel include: 1) serving as a valuable asset in high-value negotiations, such as collateral; 2) acting as evidence to prove the legality of trademark proprietorship; 3) preventing unauthorised economic use by others that could potentially harm the reputation of the provided quality; and 4) providing certainty and ease when someone plans to expand their YouTube business, e.g. such as engaging in a merchandising business or hosting events.

Registering the creator's name establishes the required distinctiveness for trademark eligibility for a YouTube channel. Notably, names, logos, and/or slogans can be registered, provided they comply with Article 20 of the Indonesian Trademark Law.  It is essential to highlight Indonesia's "first to file" system, underscoring the importance of early registration. However, this recommendation is not absolute, considering potential challenges such as opposition from the prior right proprietor or rejections from the office, which in this case, require thorough consideration.

 

[1] Global YouTube user rankings, based on data generated by Statista.com, https://www.statista.com/statistics/280685/number-of-monthly-unique-youtube-users/ , accessed on 15th Januari 2024

[2] YouTube users in Indonesia as of June 2023, by age group, data generated by statista.com, https://www.statista.com/statistics/1399512/indonesia-share-of-youtube-users-by-age-group/, accessed on 15th January 2024

[3] This statement does not intend to advertise or affiliate with the mentioned YouTube channel name.

[4] Pursuant to Article 1 point 1 of Indonesian Trademark Law, mark defined as any sign capable of being represented graphically in the form of drawings, logos, names, words, letters, numerals, colors arrangement, in 2 (two) and/or 3 (three_ dimensional shape, sounds, holograms, or combination of 2 (two) or more of those elements to distinguish goods and/or services produces by a person or legal entity in trading goods and/or services.  Furthermore, Article 1 point 2 defined trademark as any mark used for goods traded collectively by a person or several persons or a legal entity to distinguish other similar goods.

[5] See Recital (Consideration) point a of Indonesian Trademark Law

[6] See Article 20 of Indonesian Trademark Law

[7] See Article 21 of Indonesian Trademark Law:

  1. An application is refused if the Mark is substantively similar to or identical with:
    1. a prior registered Mark of other parties or prior Mark application in respect of similar goods and/or services; b. a well-known Mark of other parties for similar goods and/or services;
    2. a well-known Mark of other parties for different goods and/or services complying with certain requirements; or d. a registered Geographical Indication.
  2. An application is refused if the Mark:
    1. constitutes or is similar to name or initial of a well-known individual, photograph, or name of legal entity owned by other person, unless under a written consent from its proprietary;
    2. constitutes as duplication or is similar to name or initial, flag, symbol or State emblem, or both national and international agency, unless under a written consent from the authorities; or
    3. constitutes as duplication or is similar to official signs or seal or stamp used by a country or Government agency, unless under a written consent from the authorities.
  3. An application is refused if it is submitted by an Applicant in bad faith.
  4. Further provisions regarding the refused Mark Application as referred to in section (1) point a to point c are regulated by a Ministerial Regulation.

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A&CO Law Office

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