Is Custom Recordal of Intellectual Property Rights (IPRs) available in Indonesia?
Is Custom Recordal of IPRs compulsory in Indonesia?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Indonesia?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Indonesia?
The Government Regulation No. 20 of 2017 on Controls of Import and Export Goods under 2006 Customs Law.
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs is effective on both import and export of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
It receives the request of recordal. Also, it can, of its own accord, temporarily detain any goods that it suspects to be infringing the IP owner’s rights. Thereafter, the customs authority acts in accordance with the order of the court
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
IP owners with rights registered in Indonesia may apply for customs recordal to the Directorate General of Customs and Excise (DGCE). Applications for recordals can only be made in respect of registered copyright or trademark rights. Once an application is made to the DGCE, a notice of approval or rejection of the recordal application shall be given within 30 days
What documents are to be submitted along with the application for Custom Recordal of IPRs?
In addition to the usual proof of trade mark certificates or copyright and information on genuine goods, the application must include documents relating to the local business entity, importer/exporter information and a statement of liability from the IPR owner. The IPR owner must also appoint an examiner who can verify genuine products as well as understand the distribution and marketing of the products.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Indonesia by land, sea, and air?
Is there an online system for Custom Recordal in Indonesia?
What is the official fee for Custom Recordal in Indonesia?
There is no such official fee.
What is the term of Custom Recordal of IPRs? Can it be further renewed?
01 year, which is renewable for the same term again.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Indonesia?
In which scenario does the customs department/authority suspend the clearance of imported goods?
There are two facilities, one is custom recordal and the other is suspension request. Where the suspension request is made, all IPRs are covered unlike in the application for Customs Recordal. Once the commercial court issues its decision, the same is upon the customs authority to suspend for circulation in trade.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The applicant bears the liabilities and expenses related to suspension of the release of infringing goods.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
The IPR owner or its proxy must then apply to Court within 04 working days and provide the Customs a bank or insurance guarantee. The Court must then deliver its detention order decision within 02 business days from the filing of Court application and send its decision to Customs within 01 business day.
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
Only a bank or insurance guarantee of IDR100M (USD7,200) which is valid for 60 days. If more time is required, the IPR owner can apply to Court for an extension of 10 business days; however, then there will be an additional security of another IDR 100 million (USD 7,200).
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
After termination of the Suspension Order, the detained infringing goods may be:
-Destroyed by the DGCE;
-Surrendered to investigators (e.g., if there is any legal action under criminal provisions);
-Given to law enforcement officers (e.g., if there is an application for security of costs over suspended goods); or
-Disposed according to the terms of a private settlement with the IP owner.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
After the ten-day detention period, if the goods are confirmed as infringing and if there is no settlement, the IPR owner can take legal action. The 2017 Regulation provides that this means civil or criminal action or settlement.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in Indonesia? If yes, then kindly give 2-3 points?
Yes, it applies only on registered copyright and trademark rights. Also, only those having local business presence can seek such protection.
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
Further documents may be needed as may be required by court. Also, the IPR owner must also appoint an examiner who can verify genuine products as well as understand the distribution and marketing of the products.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?