IP Litigation & Enforcement Guide in IndonesiaAAA IPRIGHT2
There have been many questions and concerns about the procedure of IP litigation and IP enforcement in Indonesia. However, in the IP industry in Indonesia, we still haven’t had a clear guideline for rights holders as well as the parties related to its procedures. This article will address some common questions and concerns of the IP litigation and enforcement landscape in Indonesia, primarily the sections revolving around civil and criminal enforcement.
Methods for enforcing IP rights in Indonesia
The procedures for civil enforcement in Indonesia
To initiate a civil action, the right holders must file an application to the Commercial Court in the jurisdiction covering the IP infringer’s habitation. Nonetheless, it should be noted that civil enforcement may not be the best means in the battle against counterfeiting. The best use of civil courts in major infringement cases has been to establish a principle, such as enforcing a difficult or complex mark.
A notarized and legalized power of attorney is required to be ready at the time of filing the lawsuit for civil action to be brought.
Normally, IP civil cases are finished within the statutorily prescribed periods. Specifically, the cases involving patents are commonly dealt with within 6 months and the cases relate to other IP matters are tried within 3 months.
The language of the proceedings is in Bahasa Indonesia. The Indian court will not accept any other language. Accordingly, the related parties must translate the required documents to Bahasa Indonesia before submitting them to the court.
Interim injunctions and permanent injunctions
For interim injunctions, besides from common methods such as stopping the suspected goods and secure evidence of the assumed violation of IP rights, the IP rights holders are empowered to grant a preliminary injunction to secure and prevent the removal of said evidence if they can establish that:
- The other party is committing or about to commit an act of infringement;
- The other party is creating irreversible loss to the lawful rights and interests of the rights holders;
- The other party is creating potential difficulties in the enforcement of any judgment.
It should be noted that although interim relief is theoretically available, they are very hard to come by. Since the founding of the IP legal system in Indonesia, there has been only one case that has been granted such action and in the end, it was overturned on appeal anyway.
For permanent injunctions, the IP rights holders are empowered to request a permanent injunction if they can prove that an infringement action has happened.
It should also be noted that even when the infringement action of the other party is proved but the damages award is denied because of failure to prove the losses suffered, the court will still grant a permanent injunction for the IP rights holders.
The criminal enforcement in Indonesia
Criminal enforcement can be initiated for IP infringement-related offenses.
To initiate a criminal case, the IP rights holders must file a formal complaint with the authorities. To gather proof for the case, a police raid and other necessary means are available. However, there are a lot of complex procedures needed to pass through in order to carry out a police raid.
After a raid, if the evidence is sufficient, the IP rights holder can pursue the complaint via criminal prosecution or mediate with the violating party and reach a settlement.
All parties have the right to appeal a judgment unless specified otherwise. The procedure to appeal can be conducted in some form of hierarchical division.
This means that an appeal against the District Court judgment shall be filed with the High Court. If not satisfied with that judgment, the appealing party can bring the case to the Supreme Court. The decision of the Supreme Court is final and binding but it could still be subject to judicial review in some exceptional cases.
The IP treaties that Indonesia is a member of:
- Madrid Agreement;
- WTO – TRIPS Agreement;
- WIPO – Performances and Phonograms Treaty;
- WIPO – Copyright Treaty;
- WIPO – Trademark Law Treaty;
- Berne Convention;
- Paris Convention;
- Patent Cooperation Treaty.
*** Other Articles***
– You could visit here to see 05 Legal Notes About Trademark In Indonesia – Indonesia Trademark Law
– You could visit here to check the Trademark Registration in Indonesia.
– You could check the Procedure of Trademark in Indonesia here.
– You can also check the Required documents of filing trademark in Indonesia
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