WORLD TRADE
ORGANIZATIONIP/N/6/IDN/1
5 April 2000
(00-1373)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
CHECKLIST OF ISSUES ON ENFORCEMENT1
Responses from Indonesia
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedure and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
In patent, copyright and trademark cases, the courts which have jurisdiction over intellectual
property right infringement are the District Court, the Appeal Court and the Supreme Court.
The Administrative High Court also has authority over intellectual property right cases.
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?
In patent, copyright and trademark cases, the right holder, the transferees and the licensees
have standing to assert their patent rights.  All parties should be represented by an attorney.  However,
a power of attorney is required to represent a client before the court.
There is no mandatory personal appearance by either the plaintiff or the defendant unless they
are requested as a witness.
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 patent cases, the Indonesian Criminal Pr ocedure Code applies pre-trial when there is
misconduct of the defendant since the investigating process.
The court has the authority to order a party to  render proof.  The process of the witness
hearing is one of the most important ways of doing so.
In copyright and trademark cases, in a law suit claim, the party that files a claim has the
obligation to prove that the claim is brought on the basis of trustworthy evidence.
                                                     
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4. What means exist to identify and protect confidential information brought forward as
evidence?
In patent cases, each party should submit the materials presented to the Court as evidence.  In
the case of sensitive and confidential information, the court may issue an order that this information
should be treated confidentially by all parties.
In copyright cases, unless stipulated as a closed hearing by the judge, there is no protection of
confidentiality of information in a lawsuit brought before the open court.
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.
In patent, copyright and trademark cases, the judicial authorities have the authority to stop
and to release goods.
In patent cases, remedies can be pursued for loss, damages, expenses of attorney fees,
destruction, etc.  The remedies are also regulated by the General Rule of the Code of Civil Procedure
(section 1365 of the Code of Civil Procedure).  Th e Criminal Procedure Code and the Administration
Code can also be applied for intellectual property right laws such as those on patents, trademarks and
copyright.
In copyright cases, the copyright holder has the right to lodge a claim for damages at the
district court against any infringement of his/her wo rk.  The author can also request confiscation of all
infringing products made of his/her work.
The copyright holder is also entitled to request the district court to order the return all of the
money gained from the copyright infringement.
In order to prevent greater losses to a party whose right has been infringed, the judge may
order the infringer to stop the publication, reproduction and distribution, and seize all works or goods
resulting from copyright infringement.
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?
In patent cases, there is no provision for this issue.  However, the right holder is free to
request the court to claim damages and to destroy the infringing goods.
In copyright and trademark cases, prior to filing a lawsuit before the District Court, the Police
have the authority to examine the case as part of the investigating process.IP/N/6/IDN/1
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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?
In patent and trademark cases, relating to the indemnification of defendants wrongfully
enjoined, the public authorities are not liable for any wrong decisions by the Court.  In a civil case, the
State, either as a right holder or infringer, will be treated as a private party.  Furthermore, the
defendant may bring a counterclaim against the plaintiff to restore any damage to his reputation or to
compensate his loss.
In copyright cases, according to Copyright Law Nº 12 of 1997, article 42(2), if the defendant
acted in good faith and had no knowledge of the infringing nature of his or her product, he or she
owes a fair payment for goods held by the court as part of the case.
8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
In patent, copyright and trademark cases, the Indonesian judicial system should uphold the
principle of "fair, expeditious and inexpensive trial".  All fees relating to intellectual property right
cases are regulated by Government Regulation Nº  26 of 1999.  The cost of court proceedings is
determined by the length of the proceeding and is ruled by the Code of Civil Procedure.  The costs of
proceedings include fees for application, case, lawyers, and confiscation.
(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 is no applicable procedure for administrative measures on intellectual property right
infringements.
In accordance with article 53 of Administrative Judicial System Law Nº 5 of 1986, a person
or company whose interest is impaired by an administrative decision may file a lawsuit against that
decision.
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 cases, the court generally has the power to order provisional measures, such as
injunctions, in order to prevent further infringement of intellectual property rights, continuedproduction of infringing goods, and further losses by the right holder.  The provisional measures are
also applied to preserve evidence of infringement.IP/N/6/IDN/1
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The legal basis for this power is derived from the Basic Judicial Law, the Civil Procedure
Code, as well as the provisions of specific intellectual property legislation.  For instance, in relation to
patents, the court 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.
11. In what circumstances may such measures be ordered inaudita altera  parte ?
In patent, copyright and trademark cases, based on, or without, the reports from the right
holders, police officers, customs officers or the government agency dealing with the intellectual
property case have the authority to seize the infringing goods.  In the case of seizure by accident, the
seizure should be approved by the court.  On the other hand, the opposing or accused party should be
informed about the seizure.
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.
In patent, copyright and trademark cases, the patent holders may request that the court order
that the infringing goods in the unauthorised possession of others be confiscated.  Based on the
Criminal Procedure, the police officers or the government agency for intellectual property
investigation can seize the infringing goods for further investigation.  However, the police or
government agency may face difficulties in determining whether the goods have infringed patent
rights.  If, after the trial, the defendant is found not guilty, he or she has the right to bring a
counterclaim by filing a lawsuit at the same object or pursuing separate litigation in order to obtaincompensation for his or her loss and damages.
13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
An interlocutory injunction may be immediately granted by the court in circumstances where
there is sufficient evidence of continuing infringe ment and the need to preserve evidence.  If an
interlocutory injunction is granted, the parties concerned must be notified and granted the right to be
heard.  The injunction must be amended, cancelled or reaffirmed by the court within 30 days.  If an
interlocutory injunction is cancelled, the party concerned can file a claim against another party andrequest the injunction for damages incurred due to the injunction.
Generally, a court will not issue an interlocutory injunction in a case of trademark
infringement if the defendant has a registration for the mark in question.
Rules governing interlocutory injunctions are sp ecifically provided for in the intellectual
property rights legislation, such as Articles 126- 9 of the Patents Law, Articles 86-89 of the
Trademarks Law, and Articles 69-72 of the Copyright Law.IP/N/6/IDN/1
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The Supreme Court has issued a directive to lower courts to cautiously exercise the granting
of provisional injunctions to ensure that the defendants' rights are not unduly prejudiced.
14. Reply to the above questions in relation to any administrative provisional measures.
There are no applicable administrative provisional measures.
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 intellectualproperty rights other than counterfeit trademark or pirated copyright goods as defined
in the TRIPS Agreement (footnote to Article 51).  Specify, together with relevant
criteria, 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 orwith the consent of the right holder a nd to goods destined for exportation?
Customs Law Nº 10 of 1995 establishes specific border measures, including temporary
suspension by customs authorities, in relation to in tellectual property rights.  These provisions apply
to goods which infringe trademarks or copyright.  Infringement is determined according to theIndonesian Trademarks and Copyright Laws, as appropriate.
Article 64.1 of the Customs Law provides th at control of imported or exported goods
suspected as a result of violation of intellectual property rights, other than trademarks and copyright
as stipulated in this law, shall be regulated by the Government Regulation with the notation that
considering 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 intellectual property rights system.
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 exemptfrom these provisions.  The definition of "passengers' goods" conforms with the provisions of the
Kyoto Convention.  Under the Customs Act, both imports and exports of infringing goods are subject
to these border controls.
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 the customs officials of goods which infringe either copyright or
trademark rights.  The initial suspension is for 10 da ys.  However, the court may extend this period for
another 10 days upon application.IP/N/6/IDN/1
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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 commercialcompetitors, 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 has requested the suspension. The security provided by the claimant under Article 55 (d) can beused 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 competent
court).
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 Act, customs officials may act on their own initiative to
detain imported or exported goods where there is strong evidence that the goods violate trademarks or
copyright.IP/N/6/IDN/1
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Officials can act directly on suspicion of infringement, or upon complaint of the right holders,
the DGIPR or the police. When such action is taken, it is reported to the DGIPR and 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.
For copyright cases, see also the replies to questions 5 and 7.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
For patent cases, see question 1.
For copyright cases, the District Court.
21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
Any infringement will be charged by imprisonment and a fine based on the Patent Law.
Using an intellectual property right illegally, without any permission, in the field of copyright,
patents and trademarks is subject to imprisonment and penalties.
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?
In patent cases, the police and Government agency of intellectual property investigators
undertake trade criminal proceedings upon or without report from the right holders.
In copyright cases, this is done by a civil servant investigator of the Ministry of Law and
Legislation of the Republic of Indonesia.
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
There is no provision regulating this matter, but private persons may provide information.
The State will conduct criminal proceedings via public prosecutors.IP/N/6/IDN/1
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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.
Imprisonment and monetary fines
- In patent cases:
Article 126 of Law Nº 13 of 1997 stipulates:  Any person who deliberately and
without rights infringes the right of a patent holder by committing any of the acts
referred to in Article 17 shall be sentenced to imprisonment of up to 7 (seven) years
and a fine of up to IDR.100.000.000 (one hundred million Indonesian Rupiah).
Article 127, concerning Simple Patent, of Law Nº 13 of 1997 stipulates:  Any person
who deliberately and without rights violates the right of a holder of a Simple Patent
by committing any of the acts referred to in Article 17 shall be sentenced to
imprisonment of up to 5 (five) years and a fine of up to IDR. 50.000.000 (fifty millionIndonesian Rupiah).
Article 128 of the Patent Law stipulates:  Any person who deliberately fails to fulfill
the obligations referred to in Article 27 paragraph (3), Article 46 and Article 52, shall
be sentenced to imprisonment of up to 5 (five) years.
- For copyright:
Article 44 of Law Nº 7/1987 provides for penalties of up to seven years in jail;  for
anyone who intentionally and illegally publishes or duplicates a work the penalty is
five years in jail.
Article 44 of Law Nº 7/1987 provides for penalties of a maximum fine of
IDR. 100.000000;  for anyone who intentionally and illegally publishes and
duplicates a creation the maximum fine is IDR. 50.000.000.
- For trademarks:
Criminal penalties are found in Articles 81-84 of Law Nº 14/1997.  They provide for
penalties of up to seven years in jail. Persons who deliberately and illegally use a
registered mark for a product of the same type will be sentenced to five years in jail.
It provides for penalties of IDR. 100.000.000;  persons who deliberately and illegally
use a mark that is the same as a registered mark for a product of the same type will be
fined with IDR. 50.000.000.IP/N/6/IDN/1
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Seizure, forfeiture and destruction of infringing goods and materials an implements for their
production
Article 128 of the Patent Law stipulates "Where a patent infringement is established, a judge
may order that products resulting from the patent infringement shall be confiscated by theState to be thereafter destroyed".
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.
In patent, copyright and trademark cases, the Criminal Procedure Law shall apply.
The duration of processing of a criminal lawsuit, if the defendant is kept in jail:
- At the level of investigation:  60 (sixty) days
- maximum 20 days (Article 24(1) of the Criminal Procedure Law);- can be extended to a maximum of 40 days (Article 24(2) of the Criminal
Procedure Law).
- At the level of prosecution:  50 (fifty) days
- maximum 20 days (Article 25(1) of the Criminal Procedure Law);- can be extended to a maximum of 30 days (Article 25(2) of the Criminal
Procedure Law).
- At the level of the District Court:  90 (ninety) days
- maximum 30 days (Article 26(1) of the Criminal Procedure Law);- can be extended to a maximum of 60 days (Article 26(2) of the Criminal
Procedure Law).
- At the level of the High Court:  90 (ninety) days
- maximum 30 days (Article 27(1) of the Criminal Procedure Law);
- can be extended to a maximum of 60 days (Article 27(2) of the Criminal
Procedure Law).
- At the level of the Supreme Court:  110 (one hundred and ten) days
- maximum 50 days (Article 28(1) of the Criminal Procedure Law);
- can be extended to a maximum of 60 days (Article 28(2) of the Criminal
Procedure Law).IP/N/6/IDN/1
Page 10
Expiration of a criminal lawsuit:
- with  a penalty of a maximum of 3 years in jail, after 6 years (Article 78(1)II of the
Criminal Procedure Law);
- with a penalty of more than 3 years in jail, after 12 years (Article 78(1)III of the
Criminal Procedure Law).
With regard to costs, there is no provision stipulating the exact amount of fees to be paid.
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