Is Sepatu Campess considered a parody?

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If there’s an Indonesian brand that can beat the hype level of Supreme, it is Sepatu Compass. Compass was established in 1998 and went through major rebranding in 2018 under Aji Handoko as its new creative director.

Then entered Campess, a bootleg version of Compass, in June 2020. Campess hailed itself as the messiah for those who are led down by Compass because they couldn’t get their hands on Compass shoes as it consistently sells out its shoes in 20 minutes.

Campess also refers to itself as a parody to Compass. Parody is an imitation of artwork with distinctive finish and deliberate exaggeration for humour or satire. Parody usually portrays social issues wrapped in humour or satire. As time goes by, parody is now widely applicable in fashion.

This begs two questions: Is brand parody legal in Indonesia and is Sepatu Campess considered a parody?

Is brand parody legal?
Parodying a brand name has become a common practice. For instance, clothing brand KAMENGSKI modifies registered trademarks by adding humour and turns it into a business. But is that legal in Indonesia?

Some countries like the US, Malaysia, India and European countries allow parody as a form of satire and humour as long as it doesn’t take away the essence of the original logo. The parody has to remind the audience of the original logo.

There are limitations in creating parody of a trademark (logo, typeface, name, colour). Creator of the parody artwork has to maintain the goodwill of the original brand. Trademark plays a vital role in business as it is the representation of a product. Trademark is the first thing consumers see.

As long as the parody doesn’t ruin the reputation and goodwill of the original brand, it should be fine.

In Indonesia, we have to dig deeper into Law No.20 Year 2016 on Trademark and Geographical Indications. We can find a regulation concerning parody through the interpretation of Article 1 (5) of the law.

The clause stipulates that registered trademark is an exclusive right granted to a registered trademark owner for a definite period of time - usually ten years. The exclusive right also allows the trademark owner to either use the trademark or authorise other parties to do otherwise.

According to the Directorate General of Intellectual Property’s website, filing for trademark application to get the right for a trademark does not necessarily mean a license to use the mark. 

Anyone can rightfully use any trademark - registered or not - as long as it is not similar to any registered trademark belonging to others in the same class of goods and services.

It’s just that with a registered trademark, the trademark owner has the right to prohibit anyone from using a similar brand name and logo in the same class of goods and services.

According to the explanation above, we can conclude that parody that ruins the goodwill of a registered brand is prohibited. The owner of the trademark has the right to prohibit anyone from using his or her trademark in the same class of goods and services.

What are the consequences of ruining the goodwill of a brand through parody?

Article 83 (1) of Law No.20 Year 2016 on Trademark and Geographical Indications states that:
The registered Mark owner and/or Mark Licensee may file the lawsuit against other parties who unlawfully use the Mark that is similar to or identical for similar kinds of goods and/or services in the form of:
a. claim for damages; and/or
b. ceasing all acts related to the use of Mark

This article allows the registered trademark owner to sue other parties who use their trademark without permission and use a similar trademark to theirs in the same class of goods or services. Looking at the elements of the article, it is definitely applicable to brands that are parodying the trademarks of other brands and selling the artwork in the same class of goods or services of the original brand.

KAMENGSKI does not fall into trademark infringement because it does not create similar goods and/or services and uses its own brand, KAMENGSKI.

Works of parody that are prohibited by the Trademark and Geographical Indications Law are those created by a third party by modifying an original mark by adding humour to similar kinds of goods and/or services under a trademark that is similar to registered trademark.

For example, a third party parodies a clothing brand then sells its products in the same industry, i.e. the fashion industry. In its business activities, the third party uses a mark that is similar to or identical with the mark of the original brand.

This method is prohibited because it can cause confusion about the origin of the product among customers before, during and after purchase. This type of parody is classified into trademark infringement. Trademark infringement puts emphasis on the outcome of a certain action: likelihood of confusion.

Is Sepatu Campess considered a parody?
Campess’ logo and name do not lend enough distinctiveness to be considered as parody. Campess’ shoes feature eerily similar logo, design and structure to Compass’. This alone is against Article 5 of the Trademark and Geographical Indications Law, unless Compass has granted permission to Campess, which is highly unlikely looking at the recent incident where Compass founder registered the Campess trademark.

Even if Campess founders filed for trademark protection, it would most likely be rejected as Campess is using a similar colour, logo and typeface to Compass that has been registered for decades. Article 21 of the Trademark and Geographical Indications Law states that an application is refused if the mark is substantively similar to or identical with a prior registered mark of other parties or prior mark application in respect of similar goods and/or services. 

As mentioned in the law, “Anyone can rightfully use any trademark - registered or not - as long as it is not similar to any registered trademark belonging to others in the same class of goods and services.”

Campess’ similar branding is riding the wave and popularity of Compass since both are selling the same products. This is also going against the goodwill of the original brand as Campess profits off Compass’ trademark by potentially swaying away the consumer from Compass since both sell the same product with similar design.