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Sunday, June 26, 2016

Indonesia civil trademark damages calculations

The Plaintiff Andy Najarudin owns the NAKAMICHI trade mark covering textiles. After discovering sales of counterfeit NAKAMICHI products he sought help from the Indonesia Textile Association. One Harry Sucipto and his business partners had been manufacturing and trading fabrics using the NAKAMICHI mark without authority since 2011.

After a failed mediation by the Association, the Plaintiff reported the Defendants to the police and filed a criminal case with the West Jakarta District Court. The District Court found the Defendants guilty of trademark infringement so sentenced then to three months imprisonment and a fine of IDR 30 million (USD2,200).

Then the Plaintiff filed a damages claim with the Central Jakarta Commercial Court as a result of the infringement. They claimed actual loss damages of IDR 5,178,765,000 (USD 380,000) as well as a total of IDR 20,000,000,000 (USD1.5 million) of intangible loss damages. The Plaintiff provided a comparison of the profits they made during 2009-2013, which showed a significant decrease from 2011 onwards, to support their claim.

The Central Jakarta Commercial Court granted parts of the Plaintiff's claim. They declared infringement of the NAKAMICHI trade mark. The Judges ordered the Defendants to cease their infringing activities and to pay a total of IDR 1.5 billion (USD110,000) in actual loss damages and IDR 1 billion (USD78,000) of intangible loss damages.

The Supreme Court rejected the defendants' appeal, but amended the Central Jakarta Commercial Court's decision removing the intangible loss damages. The criteria to calculate this amount could not be determined they said.

It is rare to see a case where the plaintive puts in evidence of its losses. Typically, judges get very little real evidence to assess damages. Plaintiffs do frequently make outlandish claims of intangible losses but often these are refused. Damages here of IDR 1.5 billion (USD110,000) seems broadly reasonable for a textiles business. In Indonesia legal costs are never awarded.

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