The food and beverage (F&B) industry includes the research and development, processing, production, wholesale and distribution, including branding and retailing, of a wide range of food and beverage products.
Recent research by the EU SME Centre suggests that European SMEs are increasingly expanding their business abroad, and are making significant investments in product development, pricing and growth strategies in emerging markets.
Rapid economic growth in South-East Asia is creating a burgeoning market for imported F&B products. Indonesia accounts for one third of the region’s GDP and has the fifth largest fresh food market in the world. The turnover in Indonesia’s processed F&B industry grew by 4 to 5 percent in the first quarter of 2015 from the same period last year.
While opportunities for EU SMEs in Indonesia’s F&B industry are promising – the country is demanding more ‘Westernised’ products – it should be noted that the majority of the Indonesian population is Muslim. This means that all slaughtered food must possess halal certification and adhere to specific labelling requirements, and that importers should be aware of regulations related to alcohol.
As well as paying attention to Indonesia’s F&B regulations, EU SMEs should also take steps to ensure that their IP rights are protected. There are several types of IP that are relevant to the F&B industry.
Trade marks in Indonesia
Concerns about food safety and halal observance in Indonesia, and the relatively high number of counterfeit and home-made products (especially in the alcoholic beverage industry) mean that F&B reputation is especially important.
A trustworthy brand can be critical to the success of F&B products in Indonesia, as in other countries in South-East Asia. A company’s trade mark can therefore be critical for distinguishing the goods of one trader from those of another – i.e. it can function as a badge of quality.
Indonesia uses a ‘first-to-file’ system, meaning that the first person to register a trade mark owns the right to it – regardless of who ‘created’ it first. It is particularly important to register your trade mark in Indonesia because trademark piracy due to ‘bad faith’ registration is a serious problem. ‘Bad faith’ registrations occur when a trade mark is registered by a third party that does not own the trade mark, thereby preventing the legitimate owner from registering it.
It is also possible to register geographical indications (GIs) in Indonesia. This includes products that originate from a specific geographical location and thus possess certain qualities associated with that area. Examples include Bordeaux wine, Parmesan Reggiano cheese and Parma ham. To register a GI, the registrant must belong to a collective organisation representing a group of producers in the area that produces the goods they want to register.
Creative packaging styles are developed to distinguish the external look of different products. Despite its commercial significance, the importance of packaging is often underestimated, as is the importance of protecting design aspects of products to prevent counterfeiting and replication.
Packaging elements can be registered as trademarks, design patents or copyright; although, it is expected that 3D trademarks will be included in the new Trademark Law, which will be passed this year. 3D trademarks are another way to protect product packaging.
Design patents may be used to protect the visual appearance of products. They cover:
- The shape of a product (i.e. Chambord’s distinctive bottle);
- The pattern of a product (i.e. Tunnock’s Caramel Wafer);
- The shape and pattern of a product;
- The shape and colour of a product;
- The shape, pattern and colour of a product.
Two types of patents are recognised in Indonesia:
- Standard patents: for products and processes – three to five years to file; 20 years patent protection; and
- Simple patents: for products only – two to three years to file; 10 years patent protection.
In both cases, annual payments must be made after grant to keep the patent valid. In the case of the standard patent, publication takes place 18 months or more after the filing date, whereas for the simple patent the application will be published three months or more after the filing date.
Copyrights can also be used to protect packaging rights in Indonesia. Shapes, ornamental features, products featuring works of applied and fine art can be protected, as can images of F&B products – brochures, catalogues, web content, labels and marketing materials.
Copyright protects the expression of an idea, but not the idea itself. Copyright in a work is effective from the date of creation of the work, and there is not need to register copyright (though it is possible to record copyright at the Copyright Office).
A trade secret is widely understood as non-public information that is financially valuable and is guarded with confidentiality measures. In the F&B industry, trade secrets may refer to ingredients or processing methods that are critical to the taste, texture, appearance and smell of a product. A famous example is the Coca Cola formula.
In Indonesia, trade secrets may be protected by applying physical, technical and contractual barriers. While there is no official registration process, EU SMEs intending to import F&B products to Indonesia might consider asking their employees to sign agreements to agree to keep trade secrets confidential. All private documentation should also be marked: ‘confidential – do not disclose.’
There is no time limit to trade secret protection – it will remain a secret until it is publicly disclosed.
Case study: Es Teler 77 – an Indonesian success story
Es Teler 77 is an Indonesian fast-food chain, with over 200 restaurants in Indonesia and several in Malaysia, Singapore and Australia. It was established by Mrs. Murniati Widjaja and her husband in 1982, when they began selling a fruit ice drink called “Es Teler” from a kiosk outside a shopping mall in Jakarta.
Establishing a brand
The name “Es Teler 77” was decided when the couple decided to add the Chinese lucky number 77 to the name of their kiosk. To advertise their brand name, the family sponsored local competitions and attempted to beat national records, such as creating the biggest Christmas tree in Indonesia. These events drew media attention and increased their small company’s profile.
Gradually, their business drew larger swathes of customers; the kiosk was upgraded into a small restaurant, and several food items were added to the menu.
Due to the restaurant’s increasing popularity, the family chose to register “Es Teler 77” as a trade mark to protect their company from fraudulent activity. They also registered the company’s service mark “Juara ” Indonesia” in categories including restaurants, cafeterias, hotels, catering, beverages, food services, and various F&B categories (such as meatballs, iced drinks and syrups). Understanding the value of trade marks, the company created and registered another service mark: “Mie Tek Tek” – which would be used exclusively for noodle outlets.
Much of Es Teler 77’s success can be attributed to its strict franchising strategy. Franchisees are required to pay around EUR 7,600. This entitles them to a franchise term of 5 years. Franchisees are obligated to send their staff to an Es Teler 77 training centre for one week, followed by three weeks at an established Es Teler outlet. Franchises must be in either mall, shopping centre or supermarket locations.
The Es Teler 77 brand is widely known in Indonesia and South-East Asia due to its owners’ meticulous protection of its trade marks. The company has also invested in catchy marketing and has developed a strong and highly reputable franchise.
Take-away messages for EU SMEs in Indonesia’s F&B industry
- Mandatory F&B regulations and labelling requirements do not cover IP protection in Indonesia. To protect your trade marks, designs and copyrights in Indonesia you should always consider registering them.
- Due to F&B safety concerns and the prevalence of counterfeit goods in Indonesia, brands and packaging are often key to the success of EU SME products.
- Registration is the key to the protection of your IPR in Indonesia.
- Design patents can be a good way to protect your product packaging.
- Keep trade secrets confidential – regulate access to information with physical barriers, such as contracts.
The South-East Asia IPR SME Helpdesk is a European Union co-funded project that provides free, practical, business advice relating to South-East Asia IPR to European SMEs. To learn about any aspect of intellectual property rights in South-East Asia, visit our online portal at www.asean-iprhelpdesk.eu. For free expert advice on South-East Asia IPR for your business, e-mail your questions to: firstname.lastname@example.org. You will receive a reply from one of the Helpdesk experts within three working days.
With thanks to our Indonesia Expert, Andrew Conduit, for his input.
 Story taken and adapted from WIPO: http://www.wipo.int/ipadvantage/en/details.jsp?id=2508