WORLD TRADE
ORGANIZATIONIP/N/6/IDN/1/Rev.1
25 April 2000
(00-1636)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
CHECKLIST OF ISSUES ON ENFORCEMENT1
Responses from Indonesia
Revision2
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedure and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
The Constitution of the Republic of Indonesia of 1945 confers legislative power on the
Parliament and the Executive (Articles 5 and 20), and judicial power on the Supreme Court and "such
other courts of law as are provided for by law" (Article 24.1).  It also stipulates that "the composition
and powers of these legal bodies shall be regulated by law".
The court of first instance for intellectual property infringement cases is the District Court,
with a right of appeal to the High Court, and of cassation (appeal on points of law) to the Supreme
Court.
2. Which persons have standing to assert IPRs? How may they be represented? Are there
requirements for mandatory personal appearances before the court by the right holder?
The question of legal standing and representation by counsel in respect of civil matter is
governed by Articles 115 to 245 and Articles 372 to 394 of the Civil Procedure Law (Het HerzieneIndonesisch Reglement).  A right holder has standing to assert his/her intellectual property rights in
the District Court.  In some cases, a civil action is followed by a criminal action.  Based on the Civil
Procedure Law, in some circumstances, interested third parties may also have standing.  For instance,
a public prosecutor may take an action on behalf of public interest against a registered trademark on
the basis that it is morally offensive.
The parties having locus standi  may be represented by legal counsels, or by themselves
(representation by legal counsel is not mandatory).  A power of attorney is required for a legal counsel
to represent a party.
There are no requirements for mandatory personal appearances by the right holders, although
the plaintiffs or defendants may be summoned by the presiding judge to appear by themselves.  In
practice, it would be exceptional for the right holders to be required to appear in person.  Parties may
                                                     
1 Document IP/C/5.
2 See document IP/N/1/IDN/2/Rev.1.IP/N/6/IDN/1/Rev.1
Page 2
submit evidence by sworn affidavits (including affi davits from abroad, if necessary).  (Article 81 of
the Civil Procedure Law.)
3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produc e evidence that lies within its control?
In practice, it is the obligation of a party to the case to produce all the evidence as complete as
possible to convince the court of its claims.  However, the court has wide authority to order the
production of evidence that is necessary for the conduct of the trial, either upon the request of an
opposing party or on its own initiative.  A court may order both parties and non-parties to the dispute
to produce evidence.  This may include confidential documents necessary for the proceedings, such as
patent documentation.  The basis for judicial powers with respect to evidence is the Civil Code andthe Civil Procedure Law as stipulated above.  The court may also call witnesses, including plaintiffs
or defendants, in order to establish necessary facts.
Refusal to comply with an order to produc e evidence is a contempt of court.  The
consequences of such a contempt of court are set out in Article 316 of the Civil Code.
4. What means exist to identify and protect confidential information brought forward as
evidence?
The Basic Judicial Law (Law Nº 35 of 1999, Article 17) provides for in camera  hearings at
the discretion of the presiding judge, in order to protect confidential information which is brought
forward as evidence in a dispute.  Examples of such information include documents associated with
patents, band documents, trade secrets, and information with moral implications.  Banking law also
provides for confidentiality of banking information used in judicial proceedings.  Breaching the
confidentiality of in camera  hearings amounts to a contempt of court.
Under the professional ethics of the legal profession, legal professional privilege attaches to
confidential information obtained by a legal practitioner in the course of representing a client.  This
privilege extends to confidential information obtained during in camera  proceedings.
Under Article 58.2 of the Customs Law (Law Nº 10 of 1995), when considering a request
from a trademark or copyright owner to examine al leged infringing goods, the court may take into
account the need for protection of trade secrets or  confidential technological information used in
producing the goods and limit the license to examine accordingly.
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use ;
- injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;
- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
The relevant intellectual property right legislation provides for specific remedies that may be
ordered by the judicial authorities.  These are in accordance with the Civil Code.  Generally, damages
are limited by the scope of the claim by the plaintiff in a lawsuit, and would normally be limited to theactual damages.  Recovery of lost-profits may also be claimed if a sound basis for such a claim is
established in the lawsuit.  In accordance with general practice, courts may also order the unsuccessful
party to the civil action to pay the legal costs of the other party.IP/N/6/IDN/1/Rev.1
Page 3
A complementary measure is provided under Ar ticle 1365 of the Civil Code which provides
for remedies against any unfair commercial practices that cause damages, such as negligence or
misconduct.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in the
production and distribution of the goods of services found to be infringing and of their
channels of distribution?
The court has the authority to order the infringi ng party to provide information on the identity
of third parties involved in the production and distribution of infringing goods or services, and to
provide information of the channels of distributio n.  This authority is derived from the general
evidentiary powers of the courts as provided under Article 1866 of the Civil Code.
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
A party who has been wrongfully enjoined in an action to protect intellectual property rights
may seek compensation for its losses in one of two ways.  Firstly such a party may lodge a
counterclaim in the course of the original proceedings, or alternatively initiate a separate claim for
damages.
Public officials who initiate proceedings against an innocent party are not personally liable for
their actions provided they are acting in the course of their official duties.  Equally, judicial authorities
are exempted from liability for their actions while exercising judicial functions in good faith. In
practice, the public authorities are more likely to use criminal than civil measures againstinfringement.
Generally, public authorities or officials are personally liable for abuse of power, and there is
no overall exemption from liability for actions taken in bad faith.  There are several laws establishing
disciplinary measures for public authorities (including Government Regulation Nº 30 of 1980 on
Public Servant Disciplinary Sanctions).
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
The Indonesian judicial system is bound by the principle that procedures should be conducted
in a manner that is expeditious, equitable, and inexpensive.  This is in accordance with the BasicJudicial Law (Law Nº 35 of 1999, Article 4).  The ac tual duration of the case will depend on its nature
and complexity.  According to the Supreme Court Circular Letter of 21 October 1992, the case should
be decided within 6 months.  Normally, matters can be determined within two to three months at first
instance. If the plaintiff can show that urgent circumstances apply, it is possible that proceedings be
expedited.
(b) Administrative procedures and remedies
9. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
There are no applicable infringement procedures conducted as administrative measures.IP/N/6/IDN/1/Rev.1
Page 4
More generally, according to Article 53 of the Law on the Administrative Judicial System
(Law Nº 5 of 1986), a person or a corporation whose interest is harmed by an administrative decision
may file a lawsuit, seeking that the decision be declared void or illegal.
Provisional Measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
In civil infringement cases, the court generally has the power to order provisional measures,
such as injunctions, in order to prevent continued infringement of intellectual property rights, further
trade in infringing goods, and further losses to the right holder, and to ensure the preservation of any
evidence of infringement.
For instance, in relation to patents, the co urt has the authority to immediately issue an
injunction:
- to prevent the continuation of infringement of a patent and the rights pertaining to the
patent, particularly to prevent the entry of products allegedly infringing the patent and
the rights pertaining to the patent into trade, including importation;
- to keep the evidence relating to the infringement of a patent and the rights pertaining
to the patent in order to prevent the elimination of evidence;
- to request the party who might have suffered to provide evidence that the party is
truly entitled to the patent and the rights pertaining to the patent, and that such rights
are being infringed.
Please note that "injunction" under the Indonesian legal system is a kind of provisional
decision made after the court session has taken place.
11. In what circumstances may such measures be ordered inaudita altera  parte ?
There are no such provisions in the Indonesian intellectual property legislation, however, the
Customs Law, Articles 54 and 58 (Law Nº 10 of 1995) provides such kind of provisions.
12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time-limits and safeguards to protect the
legitimate interests of the defendant.
If, after the trial, the defendant is found not guilty, the defendant may counter by filing a
lawsuit at the same object or making separate litigation in order to obtain compensation for his or herloss and damages because of the seizure.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
See the answer to question 8 above.  In general it applies mutatis mutandis  to this question.IP/N/6/IDN/1/Rev.1
Page 5
(b) Administrative measures
14. Reply to the above questions in relation to any administrative provisional measures.
There are no applicable infringement procedures conducted as administrative measures.
Under Article 53 of the Law on the Administrative Judicial System (Law Nº 5 of 1986), a
person or a corporation whose interest is harmed by an administrative decision may file a lawsuit
seeking that the decision be declared void or illegal.
Special Requirements Related to Border Measures
15. Indicate for which goods it is possible to apply for the suspension by the customs
authorities of the release into free circulat ion, in particular whether these procedures
are available also in respect of goods which involve infringements of intellectual
property rights other than counterfeit trademark or pirated copyright goods as defined
in the TRIPS Agreement (footnote to Article 51).  Specify, together with relevantcriteria, any imports excluded from the application of such procedures (such as goods
from another member of a customs union, goods in transit or de minimis imports ).  Do
the procedures apply to imports of goods put on the market in another country by or
with the consent of the right holder a nd to goods destined for exportation?
The Customs Law (Law Nº 10 of 1995) establishes specific border measures, including
temporary suspension by customs authorities, in relation to intellectual property rights.  These
provisions apply to goods which infringe trademarks or copyright.  Infringement is determined
according to the Indonesian Trademark and Copyright Laws, as appropriate.
Article 64.1 of the Customs Law provides that "the control of imported or exported goods
suspected as a result of violations of intellectual property rights, other than trademarks and copyright
as stipulated in this law, shall be regulated by Government Regulation" with the notation that it should
consider the provisions of Law Nº 7 of 1994 on the Ratification of the Agreement Establishing the
World Trade Organization.  The implementation of the provisions of Articles 54 to 63 on intellectual
property rights, other than those related to trademarks and copyright, is conducted gradually, taking
into account the ability and readiness of the management of the system of intellectual property rights.
Under Article 63, goods which are brought by passengers, crews of means of transport or
border-crossers, or consignments sent by mail or courier which have no commercial value are
exempted from these provisions.
Under the Customs Law, both imports and exports of infringing goods are subject to these
border controls.  (Articles 54 and 58 of the Customs Law.)
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirements
related to the duration of suspension (Artic le 55).  How have Articles 53 (security or
equivalent assurance), 56 (indemnification of the importer and of the owner of the
goods) and 57 (right of inspection and information) been implemented?
Articles 54-58 of the Customs Law provide that , upon request, a District Court may issue a
warrant for the suspension by customs officials of goods which infringe either copyright or trademark
rights.  The initial suspension is for 10 days.  However, the court may extend this period for another
10 days upon application.IP/N/6/IDN/1/Rev.1
Page 6
An application for a warrant for the suspension of allegedly infringing goods must include:
- sufficient evidence concerning the violation against trademarks or copyright of the
party concerned;
- evidence of ownership of the trademarks or the copyright of the party concerned;- a sufficiently detailed description of the relevant goods to make them easily
recognizable by the customs officials.
An application for a warrant for the suspension of goods by customs officials must be
accompanied by a security deposit, as a safeguard against abuse of these provisions by commercial
competitors, to indemnify the customs authorities against claims for damages, and to protect the
alleged infringer from losses in the event that infrin gement is not proven.  Article 57 provides that any
extension of the period of suspension must also be accompanied by the extension of securities.
Upon receipt of the warrant from the court, the customs authority:
- notifies the importer, exporter, or owner of the goods in writing about the order to
suspend the release of the imported or exported goods;  and
- suspends the release of the imported or exported goods of the party concerned as of
the date of the warrant.
Article 61 provides that if the goods in question are not the result of infringements of
trademarks or copyright, the owner of the goods ha s the right to obtain compensation from the party
who requested the suspension.  The security provided by the claimant under Article 55 (d) can be used
as payment or partial payment for the compensation.
Article 58 provides that upon application the court may grant the intellectual property right
holder the right to examine the suspended goods, subject to certain provisions including the protection
of confidential information.
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of
decisions by the competent authorities for the suspension of the release of goods into free
circulation?
Extensive data are not available, since suspension of infringing goods to date has essentially
been undertaken at the initiative of the competent authorities (see question 18).  The suspension of
goods would continue until the legal proceedings are concluded and a final judicial decision reached.
However, the goods are to be released after ten days if the necessary legal action is not taken by the
complainant.  (This period can be extended up to a further ten days upon the order of the competentcourt.)IP/N/6/IDN/1/Rev.1
Page 7
18. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio  action?
Under Article 62 of the Customs Law, customs officials may act on their own initiative to
detain imported or exported goods where there is strong evidence that the goods violate trademarks orcopyright.
Officials can act directly on suspicion of infringement, or upon complaint of right holders.
When such action is taken, it is reported to the police as well as the public prosecutor as required.
19. Describe the remedies that the competent authorities have the authority to order and
any criteria regulating their use.
Customs officials have the authority to detain goods suspected of being the result of
violations of trademarks or copyright.
If the import or export of the detained goods also entails a specific customs offence (other
than intellectual property infringement), i.e. false customs declaration or misdescription of goods (in
violation of Article 103 of the Customs Law), the customs officials may confiscate the goods, detain
the offender and refer the matter to the police.  If no customs offence has been committed, they may
refer the matter to the police and the public prosecutor for legal action to be initiated.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
Under the intellectual property right legislation, the court of first instance for criminal
prosecution of intellectual property right infringements is the District court.  As a general rule, the
place of commission of the alleged infringeme nt would determine which District Court has
jurisdiction.  Each District Court has the competence to deal with criminal violations of intellectual
property right laws which take place in its jurisdiction.
21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
Criminal procedures and penalties are specified for infringements of patent, marks and
copyright.  These are provided for in the specific  legislation concerning such intellectual property
rights.
In addition, there are criminal penalties for misleading and deceptive commercial practices
and acts of unfair competition in accordance with the Penal Code (Wetboek van Strafrecht, Article
382bis), and in particular under the Consumer Protection Act (Law Nº 8 of 1999) and the Law on the
Prohibition of Monopolistic Practices and Unfair Competition (Law Nº 5 of 1999).
22. Which public authorities are responsible fo r initiating criminal proceedings? Are they
required to do this on their own initiative and/or in response to complaints?
The public prosecutor within the Attorney General's Office is responsible for initiating
criminal proceedings. It may do so on its own initiat ive or in response to information from the State
police, customs officials, public service investigators, or right holders.  In accordance with Article 107
of the Criminal Procedure Law (Law Nº 8 of 1981 ), special investigators who are the employees of
the Directorate General of Intellectual Property Rights, Department (Ministry) of Law and Legislation
("DGIPR"), known as "PPNS", are charged with specific authority in respect of the investigation ofIP/N/6/IDN/1/Rev.1
Page 8
criminal infringements.  They are empowered to undertake investigations and to secure evidence as
the basis of criminal proceedings.  However, the PPNS are required to report to the police on the
commencement and outcome of an investigation.  In practice the PPNS may investigate only together
or at least with the cooperation of the police.  Please note that PPNS are regular government
employees at the DGIPR whose main duties are to serve the public in respect of intellectual propertyright application.  They are not specially recruited as the PPNS.
The State police (Economic Crimes Division), the Directorate General of Customs and
Excise, and the PPNS may initiate investigations and seize evidence.  Within the State police, a
specific Intellectual Property Rights Investigations  Unit is responsible for intellectual property right
investigations.
Once these agencies have concluded the relevant investigation, they then submit the summary
of their investigation and any evidence to the public prosecutors.  Customs officials and the PPNS
must submit the summary of the investigation to the police in first instance, who then refer it to the
prosecutors.  In practice, there is a close co-ordination between the police and the DGIPR on
infringement matters in the case such matters are reported to the DGIPR.  In the past, a specificcharge had to be lodged before the police could initia te inquiries, but the police is now able to initiate
investigations without charges having been laid.
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
No, but a right holder may inform the police,  customs officials, or PPNS, and make a
complaint.  Criminal proceedings are conducted by the public prosecutors as stated above.
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
Criminal penalties for the infringement of the Patents, Trademarks and Copyright Laws,
include imprisonment for a maximum period of 7 years, and/or a maximum fine of
IDR. 100,000,000.00 and the destruction of infringing goods and materials.
The Penal Code and implementing regulations on criminal procedures provide more detailed
rules for imprisonment, confiscation and disposal of goods.
There is also the possibility of the revocation of the trading or business licenses of infringing
parties.
25. Describe provisions governing the length and any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
The answer to question 8 also applies mutatis mutandis  to this question.
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