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Friday, March 27, 2015

Civil Court damages awards in Indonesia

An infringement case has reached trial in the Central Jakarta Commercial Court and the panel of judges ordered the Defendants to pay 2.5 billion rupiah (USD190,000) in compensation. The case concerned the trademark NAKAMICHI registered in class 24 for textiles by Andy Najarudin.
He found out about infringement of his mark on August 2013 through customer complaints. The defendants comprised a series of infringers involved in the manufacturing, trading and distributing of products bearing the Plaintiff's trade mark: Harry Sucipto, Janwar T. Sucipto, PT Sipatek Putri Lestari, Dhanny S. Suwaji (owner of a business called CV Pansurya), dan Handoko (owner of a shop called Toko Moro Seneng).

Despite what appears to be a large damages award by Indonesian court standards, the Plaintiff's lawyer complained to the media that the award was far below his client's actual losses. A separate criminal case had been filed and one of the Defendants had been sentenced to 3 months imprisonment.

Whether the Plaintiff will get paid is unclear. But this is a strong deterrent message. Too few infringement cases reach the civil courts so this damages claim is a good example.

Tuesday, March 24, 2015

Olympic battles in Indonesia see the IOC victorious

Image result for olympics logoThe Olympic logo wars have been reported previously here. The conclusion of a cancellation case brought against the National Sports Committee of Indonesia (KONI) means KONI is no longer allowed to use a five-ring logo.

The Jakarta Commercial Court ordered the cancellation of KONI's trademark in a lawsuit filed by the Indonesian Olympic Committee (KOI). The Panel of Judges declared that KONI's logo is similar to the five-ring Olympics logo owned by the International Olympic Committee (IOC). This has been used by the organization since 1914 for Olympic events and so the Court considered it a well known mark and that the Defendant had registered the similar mark in bad faith. The court ordered the Directorate of Intellectual Property Rights to cancel KONI's trade mark  registrations in class 16, 18, 24 25. KONI has filed an appeal at the Supreme Court.

Sunday, March 22, 2015

Vietnam civil trademark infringement litigation

Hoa Sen Group, a Vietnamese building material manufacturing group has sued Ho Tat Minh Enterprise for IP infringement in the Tay Ninh Province People's Court on 2 March 2015. Tay Ninh is 100 km NE of Saigon in the Southern part of Vietnam.
Hoa Sen Group alleges that Ho Tat Minh Enterprise has used their trademark on its signboard (left) and in price quotes. Although Hoa Sen Group arranged several meetings to try to resolve the dispute amicably, Ho Tat Minh Enterprise refused to settle. Ho Tat Minh Enterprise maintains that they are making fair use of the HOA SEN mark as they are selling Hoa Sen Group's products.

Hoa Sen Group, the plaintiff, registered the infringed mark at the National Office of Intellectual Property (NOIP) so have grounds for pursuing the case. Vietnam's legal system does not directly address the issue of "honest use", however, an equivalent is regulated in Article 125.2h of  Vietnam's Law on Intellectual Property, which states that IPR holders shall not have the right to prevent others from using in an honest manner people's names or marks descriptive of the goods or services. Tay Ninh Province People's Court is still considering the case.

Thursday, March 19, 2015

Trial and appeal leaves uncertainty over preliminary injunctions in Indonesia

Image result for Bung Karno: Indonesia Merdeka
The Soekarno film dispute reported here was the first Temporary (Provisional) Anton Pillar / Injunction order granted in Indonesia under its 2012 rules.
The case continued on to trial and appeal and a number of problems arose. The first was that the Plaintiff claimed in the lawsuit that she was the creator of the film "Bung Karno: Indonesia Merdeka". She claimed this was turned into the movie entitled "SOEKARNO". She claimed that there was a cooperation agreement to jointly produce the movie. Thus there was infringement of her copyright by the production of a movie otherwise than per that agreement.
The Defendants argued that the Plaintiff's contribution to the movie was only as areference (she is one of Soekarno heirs) and not as creator of the script used for the movie. Thus there was no copyright infringement. The Defendants also requested that the movie script and master copy of the movie which were seized by the preliminary injunction order be returned.
The Commercial Court had accepted parts of the Plaintiff's case by declaring that she was the creator of "Bung Karno: Indonesia Merdeka" and rejected the Defendants' claims. The Defendants appealed.

The Supreme Court overturned the first instance decision completely. They found that the Defendant did not create the movie based on the Plaintiff's script. Instead, it was written by another person who worked closely with the movie director under contract. The Judges stated that the contractual dispute was a side issue under the jurisdiction of the District Courts.  The Supreme Court ordered the Plaintiff to return the script and master copy of the movie to the Defendants.
It is not entirely clear how this case could be reversed so completely. It appears there is a wider dispute between the parties and that the use of a temporary injunction was premature. The Plaintiff convinced the Commercial Court to make an order perhaps without disclosing the full nature of the dispute. This demonstrates the difficulty of a system with no duty of disclosure of the wider picture to the court. The Commercial Court would have been reluctant to overturn its own decision on the injunction, when it was the first of its kind.  Presumably now the Defendants may now seek redress for a wrongfully granted injunction under the rules.
The net result is yet more uncertainty over the future of preliminary injunctions in Indonesia.

Wednesday, March 18, 2015

Indonesia domain name changes

Image result for PANDI INdonesiaSince opening on August 17, 2014, registrations for the new Anything.id domain reached 8,500 new .id domain names.

The naming rules however have proven difficult for personal Indonesian registrants. The rules allow personal users to register domain names for names stated on their identity cards. However, many Indonesian people use nick names. Also it is nearly impossible to alter names in identity cards. It is quite normal for Indonesians to operate in society with a different name from the one on their identity card.

So from March 1st 2015, PANDI adjusted the naming rules. Now Indonesian people may register any domain name without specific reference to their identity card on a first-come-first-served basis. This runs the risk that there will be numerous people unable to use their own name. But at least PANDI will sell more domain names this way! 

Tuesday, March 17, 2015

Indonesian GI producers association established

The Indonesian Association of Geographical Indications (IAGI) was established in February 2015. It consists of all the GI members from all over Indonesia as well as a number of GI experts. It is not yet clear how it will operate, but there are currently 28 Indonesian GIs registered in Indonesia, as well as 3 foreign GIs. The latest registration was KOPI SUMATRA ARABIKA SIMALUNGUN.  Indonesia is now gathering pace in promoting GIs, given its strength in agricultural products. 

Sunday, March 15, 2015

Indonesia's Ministry of Health seeks crackdown on fake online sales

 Image result for indonesia bpomThe Indonesian Food and Drug Monitoring Agency (BPOM) announced a program to work with logistics companies and e-commerce outlets to curb the distribution of illegal products last week. BPOM head Roy Alexander Sparingga sought support from e-commerce companies and logistics /delivery companies. He cited difficulties tracing operators behind the mushrooming online sale of unlicensed food, drugs and cosmetics over the past few years.

He referred specifically the misuse of distribution registration numbers (NIEs) which come from the BPOM license issued to the genuine producer. In 2014, BPOM took action against 300 websites offering unlicensed food, drugs and cosmetics products, and hey arranged for the sites to be blocked by the Communications and Information Ministry. 

Major online retailers such as Zalora expressed support as did courier companies. Zalora has been consulting with BPOM as to how it can sell cosmetics legally.  Online population growth is expected to reach 100 million in Indonesia in 2015. 

Thursday, March 12, 2015

Image result for harco glodok

On March 5th the USTR announced its regular review of the world's notorious markets, the largest counterfeit and pirated products centres in the world. These comprise physical locations selling hard goods as well as online sites distributing pirated content. China features heavily of course (its AIC head even this week announced how important it was to stem the tide of fakes in China). But many other regions also feature.
SE Asia has over time been improving. The Philippines has excitedly announced its removal from the list. However 3 key SE Asian problems remain:
in Indonesia Harco Glodok, the consumer goods and electronics market in North Jakarta remains a key centre of counterfeit hard goods, largely imported from China.

Thailand has a number of physical areas of concern including Talad Nat on Wireless Road which is very close to the US Embassy in Bangkok.

Vietnam's zing.vn is primarily a social media site, but continues to provide access links to unauthorized music content. Years of negotiations to legitimize its content distribution have still not yielded results.

Despite the recent growth in online business in the last few years, so far SE Asia has not seen online fake sales take off in the same way as other parts of the world. Only Zing.vn so far has been named as a serious problem.  

Friday, March 6, 2015

Women and patents in SE Asia

Image result for scientist
March 8th celebrates International Women's Day. But interesting data analysis from Vietnam shows how few women participate in the development of technology in society.  Women make up over 40 % of scientific researchers in Vietnam, which is far higher than elsewhere in the SE Asian region. This is a function of its focus on equality in education and a focus on and science in the last 30 years.  

However, when it comes to outputs there is a different picture. Of 1,134 Vietnamese individual patent applications from 2008-12 less than 9 percent were from women. This represents a huge underperformance, partly due to women taking fewer science and technology leadership roles. This is markedly worse than the global deficit in women's patent output but probably not unusual in SE Asia. International recognition of the benefits and advantages women bring to R&D and innovation is now widely recognized.  If countries could harness this, a huge step forward in knowledge economies would be possible.

Thursday, February 12, 2015

Olympic competition in Indonesia

Image result for olympics logoA dispute over the Olympic logo has put the hosting of the 2018 Asian Games in Indonesia in doubt. The Olympic Council of Asia (OCA) substituted Indonesia for Vietnam after the latter withdrew, bringing the prestigious tournament to South East Asia's largest country. 

However the Indonesian National Sports Committee (KONI) has for some years been using a symbol similar to the Olympic`s five interlocking rings. This is despite objections from the Indonesian Olympic Committee, the local representatives of the International Olympics Committee (IOC). The IOC has even written to the president and issued a warning letter threatening legal action against KONI. It raises the threat of Indonesia losing the 2018 Asian Games because KONI's five rings logo violates the IOC`s intellectual property rights.

KONI's deputy chief Manuel Inkiriwang said that KONI was the official trademark holder of the five rings logo so "KONI has the legal right to use the logo".  As a result the country's sports ministry said the government is trying to settle the matter.

Monday, January 19, 2015

Singapore is the first ASEAN PCT authority

The arrival of 2015 will see Singapore start to take on its work as an International Authority under the PCT patent system.
Singapore is moving to become the region's key IP centre, and this is part of plan. WIPO at present uses 17 countries to search and examine PCT patent applications and Singapore will become the 18th. It is first in the ASEAN region and the fifth in Asia (along with China, India, Japan and Korea). Applicants under the PCT may therefore select Singapore for searches and examination reports, which will be conduced by IPOS.

Singapore is presenting this as an advantage for the region (and their ability to handle Chinese is for sure). How ASEAN applicants can benefit is not yet clear. Singapore examiners will certainly be more in tune with some technologies in the region.  And it presents opportunities for ASEAN applicants to have an authority based in their region which they can contact easily.

Thursday, January 15, 2015

Supreme Court upholds patent preliminary injunction in Philippines

Pfizer/Warner Lambert, filed patents Atorvastatin in various forms, which it sells under the brand LIPITOR, an anti cholesterol drug. In 2005, Pfizer took action against Sahar International Trading, Inc. (Sahar), who had applied for a marketing approval certificate for Atorvastatin Calcium for sale under its brand Atopitar. Pfizer claimed that the Atorvastatin Calcium in its Atopitar product was in crystalline form so infringed its patent.

After no response to warnings, Pfizer sought an preliminary injunction in the Makati Trial Court in 2008. This was refused for somewhat spurious reasons. Sahar argued the patents were expiring overseas, and its foreign sourced products could thus be sold. The preliminary injunction was the subject of the appeal by Pfizer to the Court of Appeal which granted it.

Then in 2014 the Supreme Court heard Sahar's appeal. It said the injunction was properly granted, the Court of Appeal had found patent infringement and so the Supreme Court made the injunction permanent, awarded both 8,000 USD in damages USD and 1200 exemplary damages and also an award for fees and litigation expenses. It also confirmed the seizure of Sahar’s ATOPITAR.

While not quite up to the damages levels of developed markets, the decision shows how the Philippines top court covered all the bases in its decision.  The hope is that a clear precedent is now set.