27 July, 2017
Indonesian Government Regulation No. 20 of 2017 on Control of Import and Export of Goods Resulting from Intellectual Property (IP) Infringement (Regulation 20/2017) will soon come into effect on 2 August 2017. Regulation 20/2017 is issued to implement measures stipulated under Law No. 17 of 2006 on Customs (Customs Law). The highlights of Regulation 20/2017 are as follows.
Customs Recordal
Copyright and trademark owners may file an application to the Customs Office to record their copyright and trademark (Customs Recordal). They should enclose the following documents:
Proof of trademark and copyright ownership
Information on the authenticity of the product, such as the trademark, goods, trade names, product appearance, packaging, distribution and marketing channels, and the amount of products distributed within a territory (applicable for trademark recordal) Information on the characteristics or specifications of copyrighted works in the fields of science, art and literature or neighbouring rights (applicable for copyright recordal)
A Statement from the copyright or trademark owner.
The Customs Recordal application should be submitted by an IP owner having a business entity domiciled in Indonesia. Within 30 days, the Customs Office should issue a decision on whether to grant or reject the application. The recordal is valid for one year, but is renewable. This regulation also indicates that the Ministry of Finance will issue a regulation to set out specific procedures relating to this measure.
Customs Restraint
Regulation 20/2017 also allows the Customs Office to carry out Customs Restraint for imported or exported goods that are allegedly derived from copyright and trademark infringement, providing that the copyright and trademark being used as the basis for restraint has been recorded at the Customs Office (Customs Restraint).
Once the relevant officials discover suspected infringing goods, the Customs Office must send a notification to the copyright or trademark owner, and the copyright or trademark owner should provide a confirmation regarding that notice within two days after he receives the notification from the Customs Office.
Customs Suspension
Under Regulation 20/2017, the Customs Office is also entitled to suspend the release of IP infringing goods from the customs zone ("Customs Suspension") based on (i) the result of a Customs Restraint; or (ii) the initiatives of the IP owner.
Customs Suspension that is initiated as a follow-up to the Customs Restraint should be performed within four days after the copyright or trademark owner gives confirmation regarding the Customs Restraint, by filing a request to the Commercial Court.
A request for Customs Suspension lodged directly to the Commercial Court based on the initiative of the IP owner could be applied not only to trademark and copyright infringing goods, but also to goods that infringe other types of IP (such as patent, industrial design, integrated circuit layout, plant variety and geographical indication). The request for suspension should include the following information or documents:
- Proof of IP ownership, together with sufficient preliminary evidence indicating IP infringement
- Clear descriptions of the exported or imported IP infringing goods
- Payment of deposit
The applicant should also pay an operational costs guarantee to the Customs Office in the amount of Rp100,000,000 (around US$7,500) in the form of a bank or insurance guarantee. This would cover all operational costs such as transport and storage of the suspended goods. The IP owners should bear any shortage of the operational costs, while any excess will be returned by the Customs Office.
The Commercial Court must decide whether to grant or reject the request for Customs Suspension within two days after the registration of the request, and also notify the Customs Office one day afterwards. If the Commercial Court grants the suspension, the Customs Office would be able to suspend the goods for 10 days, during which period the IP owners should carry out the inspection (such suspension could be extended for another 10-day period, but the IP owners must provide an additional operational costs guarantee).
The Customs Office must terminate the suspension if (i) the suspension period (or its extension) has expired; (ii) there is an order from the Commercial Court for the Customs Office to end the suspension; or (iii) there is a legal action brought by the IP owners as a result of the Customs Suspension.
Customs Suspension is not applicable for transhipment, goods brought by passengers, border crossers, or goods sent through postal or courier services.
For further information, please contact:
Daru Lukiantono , Partner, Hadiputranto, Hadinoto & Partners
daru.lukiantono@bakernet.com
