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Thursday, January 26, 2017

Damages for trademark infringement in Indonesia

Image result for V-GEN MEMORY card
A recent trademark infringement case helps interpret damages further.  The Plaintiff owns V-GEN and V-GEN MEMORY trade mark registrations in Indonesia in class 9 for memory cards. In 2012, the Plaintiff found counterfeit memory cards sold by shops owned by the Defendant.  A criminal action was filed and the Jakarta district criminal court declared the Defendant guilty and sentenced him to 10 months imprisonment. This Jakarta High Court on appeal increased the sentence to 11 months, which was confirmed by the Supreme Court.

The Plaintiff filed a civil case claiming the counterfeiting  caused considerable damage to his business, claiming IDR 16,340,000,000 damages (over USD1 million) due to profit falls, promotion expenses and intangible damages. The Central Jakarta Commercial Court granted parts of the Plaintiff's claims. The Judges declared the marks well known and infringed and then ordered the Defendant to pay IDR 2.000.000.000 (USD140,000) to the Plaintiff. The amount was the promotional expenses of the Plaintiff in magazines, at IDR 200,000,000 per month x 10 months. The Judges denied the rest of the Plaintiff claims.

The Plaintiff appealed the smaller damages award but the Supreme Court refused his appeal.  In fact this was a decent sized damages award based on evidence. This is typically the only way to recover damages - speculative or unsubstantiated claims usually don't work.  It is perhaps odd that the claim was not based on losses or profits - as it was in the Hitachi trade secrets case - see here.

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