Checklist of Issues on Enforcement under TRIPS Art. 63.2 - View details of the document

Indonesia

(a) Civil judicial procedures and remedies

In patent, copyright and trademark cases, the courts which have jurisdiction over intellectual property right infringement are the District Court, the Appeal Court and the Supreme Court. The Administrative High Court also has authority over intellectual property right cases.

In patent, copyright and trademark cases, the right holder, the transferees and the licensees have standing to assert their patent rights. All parties should be represented by an attorney. However, a power of attorney is required to represent a client before the court. There is no mandatory personal appearance by either the plaintiff or the defendant unless they are requested as a witness.

In patent cases, the Indonesian Criminal Procedure Code applies pre-trial when there is misconduct of the defendant since the investigating process. The court has the authority to order a party to render proof. The process of the witness hearing is one of the most important ways of doing so. In copyright and trademark cases, in a law suit claim, the party that files a claim has the obligation to prove that the claim is brought on the basis of trustworthy evidence.

In patent cases, each party should submit the materials presented to the Court as evidence. In the case of sensitive and confidential information, the court may issue an order that this information should be treated confidentially by all parties. In copyright cases, unless stipulated as a closed hearing by the judge, there is no protection of confidentiality of information in a lawsuit brought before the open court.

In patent, copyright and trademark cases, the judicial authorities have the authority to stop and to release goods. In patent cases, remedies can be pursued for loss, damages, expenses of attorney fees, destruction, etc. The remedies are also regulated by the General Rule of the Code of Civil Procedure (section 1365 of the Code of Civil Procedure). The Criminal Procedure Code and the Administration Code can also be applied for intellectual property right laws such as those on patents, trademarks and copyright. In copyright cases, the copyright holder has the right to lodge a claim for damages at the district court against any infringement of his/her work. The author can also request confiscation of all infringing products made of his/her work. The copyright holder is also entitled to request the district court to order the return all of the money gained from the copyright infringement. In order to prevent greater losses to a party whose right has been infringed, the judge may order the infringer to stop the publication, reproduction and distribution, and seize all works or goods resulting from copyright infringement.

In patent cases, there is no provision for this issue. However, the right holder is free to request the court to claim damages and to destroy the infringing goods. In copyright and trademark cases, prior to filing a lawsuit before the District Court, the Police have the authority to examine the case as part of the investigating process.

In patent and trademark cases, relating to the indemnification of defendants wrongfully enjoined, the public authorities are not liable for any wrong decisions by the Court. In a civil case, the State, either as a right holder or infringer, will be treated as a private party. Furthermore, the defendant may bring a counterclaim against the plaintiff to restore any damage to his reputation or to compensate his loss. In copyright cases, according to Copyright Law Nº 12 of 1997, article 42(2), if the defendant acted in good faith and had no knowledge of the infringing nature of his or her product, he or she owes a fair payment for goods held by the court as part of the case.

In patent, copyright and trademark cases, the Indonesian judicial system should uphold the principle of "fair, expeditious and inexpensive trial". All fees relating to intellectual property right cases are regulated by Government Regulation Nº 26 of 1999. The cost of court proceedings is determined by the length of the proceeding and is ruled by the Code of Civil Procedure. The costs of proceedings include fees for application, case, lawyers, and confiscation.

(b) Administrative procedures and remedies

There is no applicable procedure for administrative measures on intellectual property right infringements. In accordance with article 53 of Administrative Judicial System Law Nº 5 of 1986, a person or company whose interest is impaired by an administrative decision may file a lawsuit against that decision.

(a) Judicial measures

In civil cases, the court generally has the power to order provisional measures, such as injunctions, in order to prevent further infringement of intellectual property rights, continued production of infringing goods, and further losses by the right holder. The provisional measures are also applied to preserve evidence of infringement. The legal basis for this power is derived from the Basic Judicial Law, the Civil Procedure Code, as well as the provisions of specific intellectual property legislation. For instance, in relation to patents, the court has the authority to immediately issue an injunction: - to prevent the continuation of infringement of a patent and the rights pertaining to the patent, particularly to prevent the entry of products allegedly infringing the patent and the rights pertaining to the patent into trade, including importation; - to keep the evidence relating to the infringement of a patent and the rights pertaining to the patent in order to prevent the elimination of evidence; - to request the party who might have suffered to provide evidence that the party is truly entitled to the patent and the rights pertaining to the patent, and that such rights are being infringed.

In patent, copyright and trademark cases, based on, or without, the reports from the right holders, police officers, customs officers or the government agency dealing with the intellectual property case have the authority to seize the infringing goods. In the case of seizure by accident, the seizure should be approved by the court. On the other hand, the opposing or accused party should be informed about the seizure.

In patent, copyright and trademark cases, the patent holders may request that the court order that the infringing goods in the unauthorised possession of others be confiscated. Based on the Criminal Procedure, the police officers or the government agency for intellectual property investigation can seize the infringing goods for further investigation. However, the police or government agency may face difficulties in determining whether the goods have infringed patent rights. If, after the trial, the defendant is found not guilty, he or she has the right to bring a counterclaim by filing a lawsuit at the same object or pursuing separate litigation in order to obtain compensation for his or her loss and damages.

An interlocutory injunction may be immediately granted by the court in circumstances where there is sufficient evidence of continuing infringement and the need to preserve evidence. If an interlocutory injunction is granted, the parties concerned must be notified and granted the right to be heard. The injunction must be amended, cancelled or reaffirmed by the court within 30 days. If an interlocutory injunction is cancelled, the party concerned can file a claim against another party and request the injunction for damages incurred due to the injunction. Generally, a court will not issue an interlocutory injunction in a case of trademark infringement if the defendant has a registration for the mark in question. Rules governing interlocutory injunctions are specifically provided for in the intellectual property rights legislation, such as Articles 126-9 of the Patents Law, Articles 86-89 of the Trademarks Law, and Articles 69-72 of the Copyright Law. The Supreme Court has issued a directive to lower courts to cautiously exercise the granting of provisional injunctions to ensure that the defendants' rights are not unduly prejudiced.

(b) Administrative measures

There are no applicable administrative provisional measures.

Customs Law Nº 10 of 1995 establishes specific border measures, including temporary suspension by customs authorities, in relation to intellectual property rights. These provisions apply to goods which infringe trademarks or copyright. Infringement is determined according to the Indonesian Trademarks and Copyright Laws, as appropriate. Article 64.1 of the Customs Law provides that control of imported or exported goods suspected as a result of violation of intellectual property rights, other than trademarks and copyright as stipulated in this law, shall be regulated by the Government Regulation with the notation that considering the provisions of Law Nº 7 of 1994 on the Ratification of the Agreement Establishing the World Trade Organization, the implementation of the provisions of Articles 54 to 63 on intellectual property rights, other than those related to trademarks and copyright, is conducted gradually taking into account the ability and readiness of the management of the intellectual property rights system. Under Article 63, goods which are brought by passengers, crews of means of transport or border-crossers, or consignments sent by mail or courier which have no commercial value are exempt from these provisions. The definition of "passengers' goods" conforms with the provisions of the Kyoto Convention. Under the Customs Act, both imports and exports of infringing goods are subject to these border controls.

Articles 54-58 of the Customs Law provide that, upon request, a District Court may issue a warrant for the suspension by the customs officials of goods which infringe either copyright or trademark rights. The initial suspension is for 10 days. However, the court may extend this period for another 10 days upon application. An application for a warrant for the suspension of allegedly infringing goods must include: - sufficient evidence concerning the violation against trademarks or copyright of the party concerned; - evidence of ownership of the trademarks or the copyright of the party concerned; - a sufficiently detailed description of the relevant goods to make them easily recognizable by the customs officials. An application for a warrant for the suspension of goods by customs officials must be accompanied by a security deposit, as a safeguard against abuse of these provisions by commercial competitors, to indemnify the customs authorities against claims for damages, and to protect the alleged infringer from losses in the event that infringement is not proven. Article 57 provides that any extension of the period of suspension must also be accompanied by the extension of securities. Upon receipt of the warrant from the court, the customs authority: - notifies the importer, exporter, or owner of the goods in writing about the order to suspend the release of the imported or exported goods; and - suspends the release of the imported or exported goods of the party concerned as of the date of the warrant. Article 61 provides that if the goods in question are not the result of infringements of trademarks or copyright, the owner of the goods has the right to obtain compensation from the party who has requested the suspension. The security provided by the claimant under Article 55 (d) can be used as payment or partial payment for the compensation. Article 58 provides that upon application the court may grant the intellectual property right holder the right to examine the suspended goods, subject to certain provisions including the protection of confidential information.

Extensive data are not available, since suspension of infringing goods to date has essentially been undertaken at the initiative of the competent authorities (see question 18). The suspension of goods would continue until the legal proceedings are concluded and a final judicial decision reached. However, the goods are to be released after ten days if the necessary legal action is not taken by the complainant (this period can be extended up to a further ten days upon the order of the competent court).

Under Article 62 of the Customs Act, customs officials may act on their own initiative to detain imported or exported goods where there is strong evidence that the goods violate trademarks or copyright. Officials can act directly on suspicion of infringement, or upon complaint of the right holders, the DGIPR or the police. When such action is taken, it is reported to the DGIPR and the police, as well as the Public Prosecutor as required.

For copyright cases, see also the replies to questions 5 and 7.

[Answer 5: In patent, copyright and trademark cases, the judicial authorities have the authority to stop and to release goods. In patent cases, remedies can be pursued for loss, damages, expenses of attorney fees, destruction, etc. The remedies are also regulated by the General Rule of the Code of Civil Procedure (section 1365 of the Code of Civil Procedure). The Criminal Procedure Code and the Administration Code can also be applied for intellectual property right laws such as those on patents, trademarks and copyright. In copyright cases, the copyright holder has the right to lodge a claim for damages at the district court against any infringement of his/her work. The author can also request confiscation of all infringing products made of his/her work. The copyright holder is also entitled to request the district court to order the return all of the money gained from the copyright infringement. In order to prevent greater losses to a party whose right has been infringed, the judge may order the infringer to stop the publication, reproduction and distribution, and seize all works or goods resulting from copyright infringement.]

[Answer 7: In patent and trademark cases, relating to the indemnification of defendants wrongfully enjoined, the public authorities are not liable for any wrong decisions by the Court. In a civil case, the State, either as a right holder or infringer, will be treated as a private party. Furthermore, the defendant may bring a counterclaim against the plaintiff to restore any damage to his reputation or to compensate his loss. In copyright cases, according to Copyright Law Nº 12 of 1997, article 42(2), if the defendant acted in good faith and had no knowledge of the infringing nature of his or her product, he or she owes a fair payment for goods held by the court as part of the case.]

For patent cases, see question 1. For copyright cases, the District Court.

[Answer 1: In patent, copyright and trademark cases, the courts which have jurisdiction over intellectual property right infringement are the District Court, the Appeal Court and the Supreme Court. The Administrative High Court also has authority over intellectual property right cases.]

Any infringement will be charged by imprisonment and a fine based on the Patent Law. Using an intellectual property right illegally, without any permission, in the field of copyright, patents and trademarks is subject to imprisonment and penalties.

In patent cases, the police and Government agency of intellectual property investigators undertake trade criminal proceedings upon or without report from the right holders. In copyright cases, this is done by a civil servant investigator of the Ministry of Law and Legislation of the Republic of Indonesia.

There is no provision regulating this matter, but private persons may provide information. The State will conduct criminal proceedings via public prosecutors.

Imprisonment and monetary fines - In patent cases: Article 126 of Law Nº 13 of 1997 stipulates: Any person who deliberately and without rights infringes the right of a patent holder by committing any of the acts referred to in Article 17 shall be sentenced to imprisonment of up to 7 (seven) years and a fine of up to IDR.100.000.000 (one hundred million Indonesian Rupiah). Article 127, concerning Simple Patent, of Law Nº 13 of 1997 stipulates: Any person who deliberately and without rights violates the right of a holder of a Simple Patent by committing any of the acts referred to in Article 17 shall be sentenced to imprisonment of up to 5 (five) years and a fine of up to IDR. 50.000.000 (fifty million Indonesian Rupiah). Article 128 of the Patent Law stipulates: Any person who deliberately fails to fulfill the obligations referred to in Article 27 paragraph (3), Article 46 and Article 52, shall be sentenced to imprisonment of up to 5 (five) years. - For copyright: Article 44 of Law Nº 7/1987 provides for penalties of up to seven years in jail; for anyone who intentionally and illegally publishes or duplicates a work the penalty is five years in jail. Article 44 of Law Nº 7/1987 provides for penalties of a maximum fine of IDR. 100.000000; for anyone who intentionally and illegally publishes and duplicates a creation the maximum fine is IDR. 50.000.000. - For trademarks: Criminal penalties are found in Articles 81-84 of Law Nº 14/1997. They provide for penalties of up to seven years in jail. Persons who deliberately and illegally use a registered mark for a product of the same type will be sentenced to five years in jail. It provides for penalties of IDR. 100.000.000; persons who deliberately and illegally use a mark that is the same as a registered mark for a product of the same type will be fined with IDR. 50.000.000. Seizure, forfeiture and destruction of infringing goods and materials an implements for their production Article 128 of the Patent Law stipulates "Where a patent infringement is established, a judge may order that products resulting from the patent infringement shall be confiscated by the State to be thereafter destroyed".

In patent, copyright and trademark cases, the Criminal Procedure Law shall apply. The duration of processing of a criminal lawsuit, if the defendant is kept in jail: - At the level of investigation: 60 (sixty) days - maximum 20 days (Article 24(1) of the Criminal Procedure Law); - can be extended to a maximum of 40 days (Article 24(2) of the Criminal Procedure Law). - At the level of prosecution: 50 (fifty) days - maximum 20 days (Article 25(1) of the Criminal Procedure Law); - can be extended to a maximum of 30 days (Article 25(2) of the Criminal Procedure Law). - At the level of the District Court: 90 (ninety) days - maximum 30 days (Article 26(1) of the Criminal Procedure Law); - can be extended to a maximum of 60 days (Article 26(2) of the Criminal Procedure Law). - At the level of the High Court: 90 (ninety) days - maximum 30 days (Article 27(1) of the Criminal Procedure Law); - can be extended to a maximum of 60 days (Article 27(2) of the Criminal Procedure Law). - At the level of the Supreme Court: 110 (one hundred and ten) days - maximum 50 days (Article 28(1) of the Criminal Procedure Law); - can be extended to a maximum of 60 days (Article 28(2) of the Criminal Procedure Law). Expiration of a criminal lawsuit: - with a penalty of a maximum of 3 years in jail, after 6 years (Article 78(1)II of the Criminal Procedure Law); - with a penalty of more than 3 years in jail, after 12 years (Article 78(1)III of the Criminal Procedure Law). With regard to costs, there is no provision stipulating the exact amount of fees to be paid.