Indonesia has taken its first steps towards a Customs IP border protection system.The Indonesian Government has issued Regulation No. 20 of 2017 on Controls of Import and Export Goods Constituting or Deriving from Intellectual Property Rights Infringement (“Regulation”). The Government Regulations was stipulated on 30 May 2017, enacted on 2 June 2017 and takes effect from 2 August 2017. It implements provisions in Law No. 17 of 2006 on Amendments to Law No. 10 of 1995 on Customs.
The Regulation provides for an IPR recordal system for
trademarks and copyrights only. Recordals are valid for a year, but renewable. Applications
can only be made by Rights Holders with a business entity domiciled in
Indonesia. Applications must attach evidence of ownership, product
authentication, distribution routes and marketing information of products.
Customs will approve or reject an application within 30 days. Specific
procedures will be set out in a government regulation from the Ministry of
Finance.
Preliminary Restraint of goods occurs first for trademarks
and copyrights that have been recorded. Customs can detain suspected infringing
goods as follows:
- Customs
will send a Notification of Restraint to Right Holders
- Rights
holders must confirm the notice within 2 days; and
- Right
holders must then file a Suspension Request to Commercial Court within 4
days of their confirmation of the notice.
Next step is a Suspension Request to Court. Right Holders
must do three things
- pay
operational costs security to Customs of Rp100,000,000 (about USD 7,500)
in the form of bank or insurance guarantee.
- submit
sufficient evidence of the IPR ownership and infringement
- apply
to Court for physical examination over the goods for which Suspension is
being requested.
Execution of Suspension Order is the third step. If a
Suspension Order is issued, Customs will notify the Right Holders, the importer
or exporter of the goods and the DGIP. Within 2 days of the court decision,
Right Holders shall submit an application to Customs to set a schedule for the
physical examination of the suspended goods. Customs will detain the goods for
up to 10 days from the date of the receipt of the Suspension Order. Rights
holder may apply to renew one time for a maximum 10 days by providing
additional operational costs security. Under certain circumstances, for example
where the detained goods have short shelf life, the importer/exporter or owner
of the goods may apply to Court for a termination of the Suspension Order by
providing security.
Once the Suspension Order expires, the detained goods can be
dealt with as follows:
- destroyed
by Customs in accordance with their procedures
- surrendered
to investigators/court pursuant to a legal action;
- handed
over to the Court’s bailiff in the event the Right Holder files an action
and/or application for security for costs over the suspended goods; or
- by
way of private settlement of disputes
There are several exceptions. The Suspension provisions do
not apply to transhipment cases. All Customs will do in these cases is notify
the Customs of the next country of destination. There will be further
Regulations by the Ministry of Finance to deal with commercial purposes of
goods brought by passengers, border crossers, or consignment sent by postal or
courier services. There are also Customs offences in other criminal laws which
may take precedence, e.g. smuggling.
The Regulation is a step in the right direction and sets out
procedures for Suspension Requests. However a lot of questions remain and
additional rules are required before any recordals or seizures can be made. For
now IP holders need to await further news on the additional regulations, which
are being drafted now by the Ministry of Finance and more information on how
the present ones will be interpreted.
No comments:
Post a Comment