Wednesday, May 30, 2012

Indonesia - preliminary injuctions still 'on the way'

The draft Supreme Court Regulation on Provisional Measures & Border Measures (PERMA) is eagerly awaited. The IPR laws contain only general rules, with no detail, so PERMA will implement these. Provisional measures means preliminary or pre-trial injunctions (trial injunctions are currently granted), search and seizure (a.k.a. Anton Pillar) orders and seizure of goods intercepted at the border. The PERMA rules add:
·  Both provisional measures and border measures will be done
through civil court orders 
·  Applicants for both may be IPR owners or licenses
·  PERMA sets out procedures for application, examination, grant and
·  The Court which covers the place of infringement occurs has jurisdiction
·  Applications should be accompanied  by:
 evidence of IPR infringement (such as samples)
o     clear information concerning the goods or documents
o  a bond equivalent to the goods must be paid (except for copyright cases)
There is a debate about whether an application for provisional measures must be followed by a full lawsuit at the Commercial Court.
IP Komodo is further concerned that using judicial remedies for Customs seizures is highly impractical and this will simply divert attention away from the need to put in place a recordal and ex officio seizure system, which is still missing in breach of TRIPS.

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