The Supreme Court of Indonesia has issued Regulation No. 5 of 2012, which sets forth the requirements and procedure for obtaining a Provisional Decision on Intellectual Property Rights Violations. A Provisional Decision in Indonesia has an effect similar to that of a Search Warrant and Preliminary Injunction against alleged infringers. The new rules, which took effect on July 30, 2012, aim to (1) prevent the entry of alleged infringing products in the market, (2) prevent the elimination of evidence and (3) stop infringement to prevent greater loss.
Under the new rules, in addition to submitting evidence of ownership and evidence showing an initial indication of infringement, the petitioner (the trademark owner or its representative) must enumerate the specific documents or evidence sought to be collected and preserved. In addition, the petitioner is required to put up a cash bond or bank guarantee equivalent to the value of the goods that are the subject of the Provisional Decision.
The petition will be assigned to a judge within 24 hours of receipt. It will be examined accordingly, and a decision of acceptance or refusal should be issued within 48 hours. From the time of filing of the petition to the issuance of a Provisional Decision, the proceedings are confidential.
A decision granting the petition will be directed for implementation to the Confiscation Clerk of Court, accompanied by the petitioner and two witnesses. The Confiscation Clerk, petitioner, respondent and witnesses present at the location will be required to sign the minutes detailing the implementation of the Provisional Decision. Persons refusing to follow the Decision will be held criminally liable for noncompliance.
Within 24 hours of implementation of the Provisional Decision, both parties will be notified of the implementation, including the respondent’s right to a hearing, at which the evidence and testimony of both parties will be considered. Thereafter, the same judge may reaffirm the Provisional Decision no later than 30 days of its issuance.
If the petition is denied, the bond will be returned to the petitioner.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2012 International Trademark Association