Thursday, April 28, 2011

IP criminal enforcement comparision - SE Asia

Indonesia's police enforcement system for IP violation is regarded as weak. See IP Komodo's earlier post here. It is worth a quick comparison with comparable ASEAN countries. The information below applies to trademark enforcement.

In the Philippines, a search warrant from a criminal court is required for a raid, which can then be executed by the Philippines National Police, or the National Bureau of Investigations (the Philippines version of the US FBI). After the raid a case is transferred to the Department of Justice for a preliminary investigation, and thereafter a trial starts. The main difficulty in this system is that the DoJ investigation can take years, and criminal trials operate by taking one day then adjourning for a month. Thus a 30 day trial takes many years to complete (average 1 day per month, with several postponements = max 10 days per year!) and so because of long delays some cases fail. IP holders complain about long storage costs for the seized evidence, and high legal costs to manage criminal prosecutions over many years.

Thailand operates criminal system for IP enforcement, relying on the police ( to apply for search warrants and conduct raids. as well as IP holder led raids there is  system for MoUs to be signed under which the police have standing instructions to undertake raids. Cases are then handed over to the prosecutors for criminal trials at the International Trade and Intellectual Property Court. Public prosecutors are entitled to issue “non-prosecution orders” in the event evidence of infringement is insufficient. But in general cases are fast and prosecuted without much IP holder involvement.

Vietnam as a former centrally planned economy operates (like China) a mixed criminal and administrative system. The Economic Police take serious infringement cases involving large quantities of stock or a network of infringers, or infringing acts or products that pose a danger to consumers (for example, pharmaceutical cases). The Market Management Bureau (MMB) (under the Ministry of Industry and Commerce and Departments of Industry and Commerce at provincial level) undertake raids at market level, for example, workshops of small to medium size.  Both EP and MMB actions are fundamentally administrative, and only the most serious cases are referred by the EP to the Prosecutions for criminal actions. The Peoples' Committees (local government) can also issue decisions on infringement too.

Conclusions? Well in IP Komodo's view Thailand runs the most efficient system. Philippines and Indonesia vye for the most inefficient, with Vietnam's former centrally planned system being the least market based and so unwieldy. But Indonesia is a G20 country so should perhaps be the leader.

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