Intellectual Property (IP) Enforcement by Recording Trademarks and Copyrights in the Indonesian Customs Recordation System
The world economy has experienced rapid growth in the last few decades. This growth has been driven even faster by the rise of international trade. However, international trade is very prone to IPR infringement activities. To cope with this, the Indonesian Minister of Finance has issued Regulation No. 40/PMK.04/2018 (MoF 40/2018) regarding Recordation, Restraint, Guarantee, Temporary Suspension, Monitoring, and Evaluation to Control Import or Export of Goods Allegedly or Originated from Infringement of IP.
Based on this regulation, the Directorate General of Customs and Excise (Customs), The Indonesian Minister of Finance has the authority to conduct restraint for goods allegedly or originating from infringement of trademark and copyright that have been recorded in the Customs recordation system. It is expected that the monitoring of IPR will be conducted effectively so that it can remove Indonesia from the Priority Watch List (PWL). PWL is a list of countries that according to the United States Trade Representative (USTR) have a serious level of IP infringements.
It is undeniable, Indonesia is a large target market that attracts producers to produce and trade its goods, including counterfeited ones. The study of the Impact of Counterfeiting on the Indonesian Economy in 2020 by the Indonesian Anti-Counterfeiting Society (MIAP) revealed that the value of counterfeited goods circulation in 2020 has reached IDR 148.8 billion with a total Opportunity Loss of IDR 291 trillion. This number has increased sharply by 347% since 2015.
Recordation is carried out by submitting an application by the IP Holders to the Customs through the Customs Excise Information System and Automation (CEISA system) on the www.customer.beacukai.go.id page. Requests for recordation will be decided whether to be accepted or not after the data validation process in the database of the Directorate General of Intellectual Property (DGIP) of the Ministry of Justice and Human Rights as well as formal requirement examination as stipulated in the MoF 40/2018. The recordation is implemented by the Sub-Directorate of Cross-State Crimes, Directorate of Enforcement and Investigation of Customs and Excise.
The recordation database will be used by Customs in monitoring the import or export of goods allegedly or originating from infringement of IP. Monitoring will be carried out by collecting data and intelligence information, physical inspection of goods, or document research.
If the IP holders have not yet recorded their goods but have strong evidence of goods allegedly or originating from infringement of their IPR, then they can apply for the Head of the Commercial Court to issue a temporary suspension order for the infringed import or export goods at the border. IP enforcement on the border conducted by Customs is also government support for the creative economy based on IP.
Moreover, public awareness of IPR recordation needs to be increased. Up to April 2022, only 25 (twenty-five) IPRs have been recorded in the Customs Recordation System. The reason for the small amount of IPR recordation in the Customs is probably due to several articles in the MoF 40/2018 that are still controversial to the IP Holders that need to be reconsidered.
For instance, Article 21 of MoF 40/2018 stated that Customs officials will implement a temporary suspension for 10 working days after receiving the court order. The IP Holders may also submit a petition to the court to extend the temporary suspension for a maximum period of an additional 10 working days. IP Holders should be alert to the short timeframe for action once a temporary suspension has been initiated and must act quickly in conducting an inspection and taking further legal action.
While in Article 24 of MoF 40/2018 stated the responsibility for all operational costs arising from the restraint and temporary suspension of the alleged infringing goods placed on the IP Holders. The operational costs for storage, handling of goods, and labor are estimated to be IDR 100 million.
From 2019 to 2021, three times of IP enforcement actions for goods allegedly or originating from infringement of IP were conducted by Customs. Two IP enforcement actions were conducted for the suspected counterfeit pen “Standarpen” in Tanjung Perak port in 2019 and 2020, and then for the suspected counterfeit razor “Gillette” in Tanjung Emas port, in 2020.
To increase the effectiveness of IP enforcement, Customs will synergize with the other relevant Ministries in the Joint Operations Task Force for IP Protection and Enforcement Program (IP Task Force). This IP Task Force consists of Law Enforcement Agencies and related Ministries/Institutions namely: DGIP; Criminal Investigation Agency of Indonesian Police (Bareskrim); Customs; Directorate General of Information Application of the Ministry of Communication and Information; Drug and Food Control Agency; Ministry of Trade; Ministry of Foreign Affairs; Ministry of Health; and the Ministry of Education, Culture, Research, and Technology.
Through this synergy, Customs is expected to eradicate the cross-country crimes in the IP sector, and create an increasingly conducive investment climate for national economic growth.
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Source: www.beacukai.go.id
Photo by: Tom Fisk www.pexels.com
Nugra & Partners – Intellectual Property Consultant
For More Information Please Contact:
Johana Listyorini
Partner
johana_listyorini@yahoo.co.id