Protection of Intellectual Property Rights on the Logo of the National Capital City (IKN) “Nusantara”

The Indonesian government is absolutely sure of moving the capital city from Jakarta to Penajam Paser, East Kalimantan, which has been named the National Capital (Ibu Kota Negara, IKN) Nusantara. As of January 2023, Head of IKN Infrastructure Development Task Force Danis H. Sumadilaga confirmed that the progress of the basic infrastructure of the IKN reached 12-15 percent ⁽¹⁾ . The IKN Authority that is in charge of IKN development does not only focus on infrastructure development but has also held a competition to create an official logo that represents IKN Nusantara. Of the 500 (five hundred) designers who took part in the competition, one logo has been selected to win the contest, which is named “Pohon Hayat Nusantara” (Nusantara Tree of Life), designed by Aulia Akbar ⁽²⁾ . 

Source: instagram @jokowi, https://www.instagram.com/p/Cs48LCcPtes/

The logo above consists of elements of images/drawings and letters with a specific font type is created based on the creativity and intellect of the designer. The form of this logo design is, of course, inseparable from the elements of intellectual property rights (IPR). The above logo certainly cannot be protected under the patent law, industrial design, or trade secrets, considering that the elements inherent in the logo are not in accordance with the general requirements and categorization defined in the patent, industrial design, and trade secret regimes. Then, what intellectual property rights are appropriate for the protection of the logo of IKN “Nusantara”?

In principle, a “logo” can be protected in the trademark legal regime, namely the protection of signs that are displayed in the form of drawings, word logos, color composition numbers, a hologram, or a combination of these elements. ⁽³⁾ However, it is necessary to pay attention again to Article 1 point 1 of the Trademark Law which explicitly prescribes “…in trading activities of goods and/or services“. Even literally, the term “merek” in English, is translated as “trademark” (re: commerce is defined as trade). Thus, the “Nusantara” logo that was officially adopted does not meet the important elements in the definition of a trademark under the Trademark Law, considering that the logo is not intended for goods/services trading activities. The logo can actually be categorized as an “emblem” or symbol of a representation of the government and not functioned for a commercial purpose. The elements of whether the state symbol or the symbol related to the state are not regulated further in the trademark law in Indonesia. However, it is certain that an application for registration of a trademark which is an imitation or resembles a name or abbreviation of a name, flag, logo or symbol or emblem of a country, or a national or international institution, except with written approval from the competent authority, cannot be registered in Indonesia. ⁽⁴⁾ This is in line with Article 6ter paragraph 1 item (a) of the Paris Convention. ⁽⁵⁾ For example, the case concerns a well-known trademark from Indonesia, namely Cap Kaki Tiga ⁽⁶⁾ , which based on the decision of the judge in the relevant case, the trademark registration was withdrawn on the basis that the trademark logo “Cap Kaki Tiga” resembles the national symbol of the Isle of Man. ⁽⁷⁾  

Furthermore, based on a search, the name and logo “Wonderful Indonesia” were also registered by the Ministry of Tourism of the Republic of Indonesia under registration number IDM000650036. However, the writer is of the view that the IKN Nusantara logo cannot be equated with the “Wonderful Indonesia” logo which has become an Indonesian tourism brand, which is currently owned by the Ministry of Tourism of the Republic of Indonesia. This is because the “Wonderful Indonesia” logo is intended for trading and marketing activities for both goods and/or services, one of which is by encouraging local brands to include the “Wonderful Indonesia” brand on their goods/services.⁽⁸⁾ The writer is also of the view that the registration of the “Wonderful Indonesia” mark as a brand is believed to avoid unauthorized misuse of the brand by third parties and to guarantee the quality of goods/services imprinted with the “Wonderful Indonesia” logo. 

To respond to the form of protection for the IKN Nusantara logo, copyright is an appropriate vehicle to protect the “Nusantara” logo created by Aulia Akbar as the designer of the logo. Law Number 28 of 2012 on Copyrights (“Copyright Law”) defines copyright as “an exclusive right of the creator which arises automatically based on the declarative principle after a work is created in a tangible form without reducing restrictions in accordance with the provisions of the laws and regulations.” Article 1 point 3 states, “Creation is any creative work in the fields of science, art and literature which is produced based on inspiration, ability, mind, imagination, dexterity, skills or expertise expressed in a tangible form“. Furthermore, Article 40 item f of the Copyright Law provides details of the “protected creations”, one of which is the creation of works of art in all forms such as paintings, drawings, carvings, calligraphy, sculpture, or collage. A logo is a form of image creation under Article 40 item f above.⁽⁹⁾   

When associated with the “Nusantara” logo design above, further questions arise: Who owns the logo design and who has the right to obtain copyright protection for the creation of the “Nusantara” logo? 

A creator is defined as a person or several people who individually or jointly produce a creation that is unique and personal. ⁽¹⁰⁾ Meanwhile, a Copyright Holder is defined as an owner of the Copyright, the party who receives the rights legally from the Creator, or other parties who receive further rights from the party who receives the rights legally ⁽¹¹⁾ .  In other words, the copyright holder is not always the creator, bearing in mind that becoming a copyright holder can be done by transferring rights. 

Copyright law in Indonesia sets out the principle of “first to use” or “first to declare”, which means that a copyrighted creation is automatically protected (and protects the creator and/or copyright holder) after the creation is manifested in real terms. The automatically inherent rights consist of moral rights and economic rights. However, it should be noted that moral rights and economic rights are two separate things. The moral rights are the rights inherent in the creator eternally, ⁽¹²⁾ while the economic rights are the rights to benefits which can be enjoyed by the creator and/or the copyright holder, which can be transferred to other parties in certain ways, ⁽¹³⁾ one of them is by means of a written agreement. ⁽¹⁴⁾   

Based on the above, Aulia Akbar is a creator who is entitled to exclusive rights in the form of moral rights and economic rights. The moral rights are eternally inherent in the creator, and cannot be transferred, but the economic rights can be transferred by agreement. Aulia Akbar as the creator is entitled to royalties ⁽¹⁵⁾ for his creation. Aulia Akbar as the winner of the IKN “Nusantara” logo contest managed to receive a reward from the organizer in the amount of Rp185,000,000.- (one hundred and eighty-five million rupiah) ⁽¹⁶⁾ . The reward is a “royalty” received by Akbar Aulia as the winner of the contest and as the creator of the “Nusantara” logo. This is also emphasized in Article 36 of the Copyright Law “Unless otherwise agreed, the Creator and the Copyright Holder for the Creations made in a work relationship or based on an order is the party establishing the Copyright“. The transfer of economic rights can transfer the creator’s position as the copyright holder to another party, the terms of which are based on an agreement between the creator and the copyright holder, among others due to a work relationship or based on an order. The transfer of economic rights can be in the form of a single purchase or by providing other economic rewards under an agreement between the parties. 

Regarding who owns the “Nusantara” logo, this ownership can be documented in the form of records. The copyright declarative system in Indonesia does not necessarily rule out the possibility of copyright registration. Copyright registration can be registered/recorded either by the creator and/or the copyright holder with the Directorate General of Intellectual Property (DJKI) on behalf of the creator or on behalf of a party under an agreement between the designer and the logo contest organizer. However, it is possible that this logo will later be registered with the Indonesian government as the copyright holder (please note that the creator and the copyright holder may be different).

1.  Aisyah Sekar Ayu Maharani, Kompas.com, “Beginning of 2023, the Progress of the Basic Infrastructure of IKN Reaches 15 Percent“, https://www.kompas.com/properti/read/2023/01/15/053000321/awal-2023-progres-infrastruktur-dasar-ikn-tembus-15-persen, accessed on 7 Juni 2023. 
2.  https://www.instagram.com/p/Cs3dnUfPNEn/?igshid=MTc4MmM1YmI2Ng%3D%3D, accessed on 7 Juni 2023
3.  This has been regulated in Article 1 number 1 of Law Number 20 of 2016 on Trademarks and Geographical Indications (“Trademark Law”).
4.  Please see Article 21 paragraph (2) item b Law Number 20 of 2016 on Trademarks and Geographical Indications
5. Article 6ter paragraph (1) item (a) of the Paris Convention stipulates that: The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view.
6.  Anton Hermansyah, Jakarta Post,  “Cap Kaki Tiga brand pulled for resembling Isle of Man logo”, https://www.thejakartapost.com/news/2016/09/14/cap-kaki-tiga-brand-pulled-for-resembling-isle-of-man-logo.html, accessed on 15 Juni 2023
7.  Supreme Court Decision Number 582 K/Pdt.Sus-HKI/2013 between Russel Vince (Plaintiff) and Wen Ken Drug Co. Pte. Ltd (Defendant) and Kemenkumham, Directorate of Trademarks – Directorate General of Intellectual Property (Co-Defendant)
8.  Yasmin Nurfadilla, second, “To Make the Wonderful Indonesia Logo Even More Special, This is the Initiative of the Ministry of Tourism and Creative Economy”, https://travel.detik.com/travel-news/d-6251800/agar-wonderful-indonesia-makin-istimewa-ini-langkah-kemenparekraf, accessed on 15 Juni 2023
9.  See Elucidation of Article 40 item f of Law Number 18 of 2014 on Copyrights (“Copyrights Law”)
10.  Please see Article 1 number 2 of Law Number 18 of 2014 on Copyrights.
11.  Please see Article 1 number 5 of Law Number 18 of 2014 on Copyrights. 
12.  Please see Article 5 paragraph (1) of Law Number 18 of 2014 on Copyrights. 
13.  Please see Article 16 paragraph (2) of Law Number 18 of 2014 on Copyrights. 
14.  Please see Elucidation of Article 16 paragraph (2) of Law Number 18 of 2014 on Copyrights: What is referred to as “can be transferred or assigned” is only economic rights, while moral rights remain inherent in the Creator. The transfer of copyright must be carried out clearly and in writing, either with or without a notarial deed.
15.  Please see Article 1 point 21 of Law Number 18 of 2014 on Copyrights: “Royalties are compensation for the use of economic rights of a Creation or Product of the relevant rights received by the creator or owner of the relevant rights”.
16.  Kompas.com, “Aulia Akbar, Bandung resident who created the IKN Logo, won Rp185 million”, https://bandung.kompas.com/read/2023/05/31/201540278/aulia-akbar-warga-bandung-pembuat-logo-ikn-dapat-hadiah-rp-185-juta?page=all, accessed on 10 June 2023