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Infringement In Indonesia – Enforcement by Criminal Action

Indonesia today faces major challenges in respect counterfeiting and infringement, as it is a widespread problem here affecting every area of industry from drugs to electronic products and from CDs to garments. As an example, in the pharmaceutical industry, around 20-30% of the drugs sold in Indonesia are thought to be counterfeit. The Indonesian government is taking this matter seriously, as counterfeiting and infringement is estimated to cause a loss of revenue to the tune of up to USD 80 million per year.

Criminal Action

One of the most effective ways of dealing with the problem of counterfeit or infringing goods is by taking a Criminal Action, which is provided for, in the respective pieces of intellectual property legislation in Indonesia.

The relevant provisions are articles 129-135 in the Indonesian Patent Law No. 14 Year 2001, articles 89-94 in the Indonesian Trademark Law No. 15 Year 2001, articles 53-54 in the Indonesian Industrial Design Law No. 31 Year 2000, and articles 71 to 73 in the Indonesian Copyright Law No. 19 Year 2002.

Procedure

A criminal action is commenced by filing a complaint to the police, followed by an official Police Report made by the client. According to Indonesian Intellectual Property Regulations, a violation against an intellectual property right is considered to be a warrant complaint, which allows for seizure of the infringing goods.

The police will then require the complainant to furnish preliminary evidence showing that the reported violation has already occurred in Indonesia together with evidence that the complainant is the rightful proprietor of the intellectual property right concerned. Therefore, before filing a complaint to the police, the proprietor or his proxy must conduct their own investigation in order to gather sufficient preliminary evidence in order for the complaint to be made.

As to the time frame for action, the preliminary booking of the case and the preparation for the search, raid and confiscation warrants will take around one month. After the papers and documents are completed, (depending on preliminary evidence provided), the police shall proceed to verify the report made by the complainant as regards the offences being committed and the parties committing the offence.

The police will then conduct a raid and confiscate the counterfeit or infringing goods from the relevant parties listed in the police report. Furthermore, any machines used for the production of the counterfeit or infringing goods will also be seized and the premises concerned sealed in order to stop their further production. Finally the police will also summon and interrogate the suspects involved in the infringing activity and the result of this interrogation may lead to further operations to trace the source of goods concerned.

During the progress of the case it is important to maintain a good relationship with the police and follow-up on the progress of the case. It is also very important to have a close rapport with the police to ensure integrity of the process as well as to assist them in prosecuting the matter properly, as they are not very familiar with intellectual property matters.

After the raid has been successfully conducted, and the investigations completed, the police (if they are of the view that there is sufficient evidence), shall handover the case to the public prosecutor. The complainant must maintain close liaison with the police to facilitate the handover of the case from the police to the public prosecutor.

The public prosecutor on their part will again summon the suspects for interrogation, and if they consider the evidence available to be sufficient, they shall commence the prosecution of the case in court. It is important to note that even after the case has been filed in Court, it will be necessary to keep monitoring the progress of the matter as the discretion to carry on prosecuting the matter remains with the state.

Conclusion

Criminal prosecution therefore remains an effective means of combating intellectual property piracy in Indonesia. However close assistance to the authorities need to be given by rights holders to ensure success.

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