TRADEMARK CANCELLATION OF THE PT. DIPOSIN IN THE PRINCIPLE OF LEGAL CERTAINTY BY SUDIKNO MERTOKUSUMO

Trademark cancellation can be done by registered trademark owners, such as PT. Pos Indonesia filed a trademark cancellation suit against the DIPOSIN mark because the mark has similarities in principle to the Pos Indonesia mark and its registration was carried out in bad faith. The judge granted the lawsuit for the cancellation of the DIPOSIN mark in part and the cancellation decision was not implemented. So, because of this, there is a legal inconsistency that results in the absence of legal certainty for brand owners who have good intentions. This study aims to discuss the judges' considerations in Decision number 8/Pdt.Sus-HKI/Merek/2020/PN.Niaga.Sby and the application of the principle of legal certainty according to Sudikno Mertokusumo. This research is normative legal research using statutory, conceptual, and case approaches. This research shows that based on Law Number 20 of 2016 concerning Trademarks and Geographical Indications the judge's consideration in Decision Number 8/Pdt.Sus-HKI/Merek/2020/PN.Niaga.Sby is appropriate however, the implementation of the decision to cancel the trademark is not appropriate with what has been set. This decision gave rise to an inconsistency of norms which resulted in the absence of legal certainty for brand owners. According to Sudikno Mertokusumo, for the law to function in a real way, the law must be upheld, because then the law becomes a reality and the law must reflect legal certainty, benefit, and justice.


Introduction
Parties whose trademarks have been registered can file a lawsuit against a registered mark belonging to another party if the mark is considered to violate Law Number 20 of 2016 concerning Trademarks and Geographical Indications Article 20 and/or Article 21. The suit referred to herein is a lawsuit for the cancellation of a registered mark. Cancellation of a registered mark can be done because the law has been regulated in this regard and the cancellation can be done if the criteria specified by the law are met. Cancellation of a registered mark is the cancellation of a mark whose certificate has been issued or a mark that has completed registration, not against a mark whose registration is being filed. 1 One of the cancellations of registered marks is the PT. it is stated that Article 91 paragraph 1 "The implementation of cancellation based on a court decision is carried out by the Minister after receiving a certified copy of the decision that has permanent legal force and is announced in the official brand news", paragraph 2 "Further provisions regarding the implementation of cancellation as referred to in paragraph 1 and deletion by the Minister as referred to in Article 72 to Article 75 regulated by government regulations". Article 92 paragraph 1 "The Minister shall cancel or remove the registration of the mark by crossing out the mark in question accompanied by providing a record containing the date and reason for the cancellation or deletion", paragraph 2 "Cancellation or deletion as referred to in paragraph 1, the owner of the mark or its attorney is notified in writing stating the reasons for the cancellation or removal of the mark, and confirms that from the date the mark is crossed out of the general register of the certificate mark the mark in question is no longer valid", and paragraph 3 "The removal of the mark referred to in paragraph 1 is announced in the official brand news". However, on the cancellation of the brand DIPOSIN the cross-out and announcing such cancellation on the official news of the brand for the mark declared void under the judgment of the court was not carried out.
Because the decision to cancel the DIPOSIN brand was not conveyed to the Directorate General of Intellectual Property Rights, so the Minister has not crossed out the DIPOSIN brand and announced it in the official brand news. This gives rise to the inconsistency of norm.
In some trademark cancellation rulings, such as the cancellation of the PT. Officer Adhitama, the judge granted the cancellation of the mark because the brand was judged to have similarities in essence or its entirety with the PT brand. Krakatau Steel. And gave an order to the Director General of IPR for the mark to be crossed off the general list of marks and ordered the defendant to pay the costs of the case. 2 The cancellation of the STONES and STONES & CO marks that occurred because it was proven in registering the marks was done in bad faith because it imitated a well-known brand and the result of the cancellation of a mark i.e. the removal of a particular mark from the general list of marks, the expiration of the protection of a particular mark and also resulted in the licensee. 3 Decision number 8/Pdt.Sus-HKI/Merek/2020/PN.Niaga.Sby This will be examined using the theory of the principle of legal certainty. Legal expert Sudikno Mertokusumo has his opinion on legal certainty, namely the guarantee that the law is implemented, the one who has the right to get his rights is he who is entitled according to the law, and a judgment can be implemented. The theory of legal certainty is what will be used in this study because it has relevance to the research problem, namely in this DIPOSIN brand cancellation decision the decision is not implemented as explained in the law.
Research on legal certainty in brand cancellation has indeed been carried out a lot.
In the research of Sonny Dwi Judiasih, 4 Fitri Ida, 5 Asep Suryadi, 6 there is also research in comparative law such as Massadeh. 7 Then research on the legal protection of intellectual property rights, Ariyesti,8 and Daniel Pinheiro Astone. 9

Method
This research uses a type of normative legal 10 research because the focus of the discussion in the article is about court decisions that are reviewed using Law Number 20 of 2016 concerning Brands and Geographical Indications as well as legal theory, namely the principle of legal certainty. Then there are 3 types of research approaches, namely: Statutory approach, 11 conceptual approach, and case approach. 12 The source of data in this study comes from primary legal materials consisting of statutory regulations and court decisions, secondary legal materials consisting of books and journals related to research and interview results, finally there are tertiary legal materials consisting of KBBI and legal dictionaries. The method of processing its legal material is carried out by means of inventory, identification, classification, and systematization. The analysis technique used in this study is data analysis with a qualitative approach to primary data and secondary data. 13 Qualitative analysis is conducted through the intermediary of the researcher's interpretation. 14 In this study, data analysis was carried out by reducing data or condensing data, then displaying reduced data into a form to help draw a conclusion, and finally drawing and verifying conclusions. 15 This research was examined using the theory of legal certainty according to Sudikno Mertokusumo, who has the opinion that legal certainty is a guarantee of the implementation of certain laws, those who are entitled to obtain rights are those who are entitled according to law, and a decision can be implemented. Legal certainty is closely related to justice. However, legal certainty is not the same as justice. Justice has a subjective, individualistic, and non-generalizing 10  nature. While legal certainty is general, binding for anyone and equal. 16 The researcher uses the theory of legal certainty according to Sudikno Mertokusumo, because the theory has relevance to the research problem, namely in the decision to cancel the DIPOSIN brand, the decision is not implemented as explained in the law. Second, cancellation or deletion as referred to in paragraph 1, the owner of the mark or its attorney is notified in writing stating the reasons for the cancellation or removal of the mark, and confirms that from the date the mark is crossed out from the general register of marks the certificate of the mark in question is no longer valid. Third, the cross-out of the brand referred to in paragraph 1 is announced in the official brand news.
In Fourth, order the Directorate General of Intellectual Property Rights, Ministry of Law and Human Rights of the Republic of Indonesia (co-defendants) to reject brands that use elements of "POS Indonesia" or that have similarities in essence or in whole with the "POS Indonesia" brand for class 39 goods belonging to other parties for which registration is requested. Fifth, punishing the defendant to pay the costs of the case.
As for the petitum that is not granted, it is the petitum that deals with removing the brand from the general list of brands and announcing it in the official news of the brand just now. On legal considerations, the judge did not grant the petitum because the   procedural law the decision of the commercial court must be delivered by the bailiff to the parties after the judgment is read so that, the smearing of the mark that was decided to be cancelled can be carried out. to function the law in a real way, the law must be enforced, because only then does the law become a reality and, the law must reflect legal certainty, expediency, and justice. 18 A judge's decision is part of a process in law enforcement that aims to achieve one of the truths of the law or to achieve legal certainty. A judge's ruling is also a product of 18 Qamar Nurul, "Supremasi Hukum Dan Penegakan Hukum," Ishlah: Jurnal Ilmiah Hukum 13, no. 2 (2011): 151-58, https://doi.org/10.31219/osf.io/qwcp9. law enforcement based on legally related matters resulting from a legally prosecuted proceeding. 19 Law enforcement must pay attention to 3 elements such as legal certainty, expediency, and justice, so in the judge's decision, so it is. Because, the judge's decision is a product in law enforcement so, in it must reflect the existence of these 3 elements.

Principle of Legal Certainty by Sudikno Mertokusumo in
Law as a regulation that serves to protect the interests of society, so the law needs to be enforced. In a judgment, justice can be seen in a matter that is disputed in court can be decided as it should be, the party who is declared right acquires its rights and the parties to the dispute are given equal rights and positions before the law (equality before the law). Meanwhile, the expediency in the judge's decision can be seen from an enforcement of the law or a decision issued by this judge can or does not provide benefits or uses, happiness for the litigants or for the community. Then the legal certainty in a judge's decision can be seen in the implementation of the law (the substance of the law) in concrete events. Sudikno Mertokusumo gave the definition that legal certainty is one of the conditions that must be met in law enforcement. The function of the law is to protect human interests, so the law must be implemented so that human interests are protected.
The law in its implementation can run peacefully, normally, but sometimes it lasts because of violations of the law. When the law takes place because of a violation of a law, the violated law must be enforced. The existence of law enforcement can make the law real. There are three elements that must be considered in enforcing the law, namely: rechtssicherheit (legal certainty), zweckmassigkeit (expediency) and gerechtigkeit (justice). The law is mandatory to be enforced and implemented. Everyone has an expectation that laws can be established against events of a concrete nature. In the implementation and enforcement of the law must not deviate, must follow the law how the law is what applies. Although this world collapses, the law must be enforced (fiat

justitia et pereat mundus), which is what legal certainty wants. 20
Legal certainty according to Sudikno Mertokusumo was born because the law must be enforced to protect human interests, and to make the law become real, it is necessary to pay attention to 3 elements that are the purpose of the law, one of which is legal certainty. This is in line with Sudikno Mertokusumo's own statement in Nurul Qamar's research which states that in order to function the law in a real way, the law must be enforced, because only then does the law become a reality and in reality the law must reflect legal certainty, expediency and justice. 21 Legal certainty is one of the requirements in law enforcement. Yustisiabel protection from arbitrary actions, which means that a person can get something to expect under certain circumstances. 22 The legal certainty referred to by Sudikno Mertokusumo is 3 points in fulfilling its legal certainty, which consists of: a. Assurance that the law is enforced, b. That the one who can get his right is the one who is entitled according to law, and c. A ruling is enforceable. 23 On the cancellation of the DIPOSIN brand which was decided through Decision Article 76 paragraph 1 explains that interested parties can file a lawsuit for cancellation of a registered mark based on the reasons referred to in Article 20 and/or Article 21. Paragraph 2 explains that the owner of a mark whose mark is not registered can also file a suit as referred to in paragraph 1 but, after the owner of the mark has filed an application with the Minister. Paragraph 3 explains that a suit for cancellation of a mark is filed by the owner of the registered mark with the Commercial Court. Then Article 77 paragraph 1 explains that a lawsuit for cancellation against a registered mark can only be filed within a period of 5 years calculated from the date the mark is In Islam, legal certainty means the principle that states that an act cannot be punished unless the act has regulations governing the act. 29 The principle is based on the Qur'an Surah al-Isra' verse (15): According to Locke, naturally each person has the right to himself and therefore the results of his work (labor) because he has made sacrifices in the form of finding, processing, and adding "personality" to something, as expressed "...yet every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are his proper. Whatever, then, he removed out of the state that Nature had provided and left it in, he had mixed his labor with it, and joined to it something that was his own, and thereby made it his property.
That originally everything on earth belonged to all mankind. However, all of this cannot be used immediately, but must be obtained and processed first. To be processed, then something that exists in nature must be taken first. Because of that, Locke emphasizes the importance of giving awards to people who have made sacrifices to find and cultivate something that comes from nature, in the form of property rights.
Justin Hughes connects Locke's views with IPR protection through the statement that IPR is acquired through a process of learning/understanding. Thus, even though the input that drives the creation process comes from the outside environment of the creator, the process of assembling the creation itself occurs in his mind so that it is no longer as pure as its original form. Literally, the protection of property rights according to Locke is not seen from a person's sacrifice through his labor, but in the activities of a person who often provide high social value to society. Thus, this social value is the basis for awarding. 30 In addition, the philosophy of the IPR system has economic reasons. That individuals have given energy, time, thought, and cost in discoveries that are useful in their lives. To protect his creations, investment capital in the form of labor, time, thoughts and costs must be accompanied by the granting of exclusive rights to individuals to enjoy the results of their thoughts. Philosophies related to IPR gave birth to appreciation theory, entertainment theory, incentive theory, and public service theory, which argues that when creative individuals receive incentives in the form of exclusive rights, they can provide innovation and invite other individuals to be creative. This means that the law guarantees that the owner receives financial benefits from the use of his invention and encourages people to create. 31 Through economic incentives, a person can be encouraged to create something and to sell his creations that benefit society. If someone is not motivated to create something and sell it to the public, the level of production will decrease so that economic activity does not run well.
Locke also provides a condition that something that will be used as property must fulfill "enough and as good left in common for others". When an idea produces something of an extraordinary nature or is really needed by the wider community, then that idea cannot be given IPR protection, because if given it it can reduce the welfare of the community and IPR protection also cannot be given to something that is general in nature. Thus, it can be concluded that copyrighted works that receive IPR protection are those that have characteristics between the two extreme characteristics. 32 Every intellectual right is a work that may not be recognized by others, violation of the intellectual ability of a person or group is the same as not respecting the originality of a work. Therefore, there are several reasons why intellectual property rights must be protected: a. IPR are natural rights, b. Reputation protection, c. The encouragement and rewards of innovation and creation. 33 Just like brand rights which are part of IPR which are produced and developed on the basis of deep thought and great expense. Therefore, legal protection of trademark rights is seen as something reasonable. Reward theory states that the legal protection given to brand rights owners is synonymous with rewards. This award is manifested in the form of protection for brand owners against anyone who violates their trademark rights. While the incentive 31  theory states that the award will provide a stimulus for the parties to create new, more innovative intellectual works. 34

Conclusion
Based on Law Number 20 of 2016 concerning Trademarks and Geographical Indications, that the Judge's considerations in Decision number 8/Pdt.Sus-HKI/Merek/2020/PN.Niaga.Sby, who granted the plaintiff's claim, was partly in accordance with what had been regulated by law. But for the implementation of the decision to cancel the brand is not appropriate. The decision to revoke the DIPOSIN brand resulted in legal inconsistencies because it was not implemented, resulting in a lack of legal certainty for parties with good intentions. According to Sudikno Mertokusumo, in order for the law to function in a real way, the law must be upheld, because then the law becomes a reality and the law must reflect legal certainty, benefit and justice.