Indonesia: when respect of public order does not lead to economic success
Public order is a concept which has miscellaneous meanings which depends on the juridical culture where you stand. In France, few trademarks are cancelled on the ground that they are conflicting with public order. A salient example which took place in Indonesia is of high relevance in order to grasp the importance of public order when registering a trademark in a culture which is unknown. The Georges V Company was willing to create a lounge bar franchise which mixed up luxury and entertainment. At the inception, the project of the Buddha Bar was launched in Paris and spread itself in several urban countries such as Kiev and Dubai. In 2008, the Company decided to open a new franchise in Jakarta, in so doing said Company filed a trademark, “Buddha Bar” designating services in class 43 and especially bars and restaurant, before the Indonesian Trademark Office. The decorum of the bar was highly problematic as it was constituted by a Buddha sculpture of 15 meters high overhanging the main area of the bar. The discrepancy which resulted from the juxtaposition of Buddhist iconography and the activities of the bar was deemed to be blasphemous. Manifestations against the opening of said bar were tense and took place before the French embassy. The movement was so widespread and the controversy surrounding the opening of the bar so fierce that a website was created entitled: the Forum Anti-Buddha Bar also known under the acronym FABB. In the aftermath of this social turmoil, the Indonesian trademark Office pronounced the cancellation of the controversial trademark on the 15th of April 2009. On the 8th of January 2010, the FABB filed a petition before the Central Jakarta District Court against the licensor of the Georges V Company, the Governor of Jakarta and the Official Tourism Office of Jakarta. The association claimed damages as high as 50 000$ and asked for the closing of the bar. The Court compelled the plaintiffs to the payment of 110 000$ of damages and contended that the name of the bar had to be changed. According to the very words of the Court the business permit granted by the Governor of Jakarta and the Tourism Office was infringing commercial laws. Actually, commercial law in the restoration sector states, bottom line, that a restaurant can be opened provided it does not contravene with social welfare. In granting the business permit to the licensor, the Governor of Jakarta and the Tourism Office were infringing aforementioned laws as they did not take into account the manifestations against the bar which were vivid. Obviously, the use of Buddhist iconography did not match with Buddhists dogmas.
Consequently, the bar adopted a new name, which was actually its former name at the time of colonialism: the Bataviasche Kunstkring but the decorum remained unchanged. The Buddha Bar trademark was not at the roots of other manifestations elsewhere. Surprisingly, the Buddhist community is not so wide as one can imagine, in Indonesia, the bulk of believers belongs to the Muslim Community. The sign Bataviasche Kunstkring is from now on the trade name of the bar and has not been registered before any Trademark Office in Indonesia. This example shows up that the registration of a trademark which is duly made is not as easy as a pie and can be circumvented by public order. As a result economic success is not ineluctable. We cannot but highlight the fact that the trademark should not have been granted in the first place by the Trademark Office. The latter could have use the concept of public order in order to disregard the registration of the controversial trademark. Such a rationale has been used in 2010 by the Swiss administrative Court which refused to grant protection to the trademark Buddha Bar filed in classes 9 and 41 on the ground that it was likely to hurt the religious faith of Swiss citizens who belong to the Buddhist community (Decision B-438/2010).