Customs Recordal Guide in Indonesia

Summary

The Government of the Republic of Indonesia finally passed the long-awaited Government Regulation No. 20 Year 2017 on the Control of Import and Export Resulting from IP Infringement (hereinafter referred to as The Regulation) which came into force on the 2nd of August 2017. The Regulation answers the ambiguities and the hard-to-implement measures introduced in the previous Regulations of the Supreme Court, the Patent and Trademark Law, and the Customs Law. Please find the highlights of the Regulation as under:

Limitations

The Regulation is limited to the control of imported and exported goods suspected of IP infringements. The Regulation defines IP as, but not limited to, trademark, copyright and related rights patent and utility model, industrial design, plant varieties, geographical indication, and integrated circuit design.

However, the Regulation further limits itself to Trademark and Copyright only. This is understandable considering the difficulty in identifying other IP rights, such as Patents, in anti-counterfeit measures.

Grounds of Control

The Customs may control the imported or exported goods resulted from IP infringements by preventing the entry of the aforementioned goods or by the Suspension Order issued by the Court. In order to conduct the former, the Customs can only prevent the import of export of the goods if the IP rights have been recorded with the Customs. 

Recordal Requirements

To record Trademark and Copyright, the Right Holders have to provide the following:

1. The proof of Trademark and Copyright ownership, usually in a form of Trademark Certificate and Copyright Recordation Notification issued by the Directorate General of Intellectual Property of Indonesia;

2. Information regarding the characteristics of authenticity, namely the trademark, the product, the trade name, product appearance, packaging, distribution route, marketing, as well as the number of products marketed within certain areas (for Trademark Recordal);

3. Information regarding the characteristics or the specifications of the artwork in the fields of science, art and literature or related rights (for Copyright Recordal); and

4. A Statement from the Right Holder or Owner for the consequences that may arise from the Recordal.

However, it is extremely important to note that the Recordal can only be requested by the Right Holder or Owner which has a business entity domiciled in Indonesia. This highlights another issue – what if the Right Holder/Owner is not domiciled in Indonesia OR does not have a business entity in Indonesia?

The Customs should also issue a notification of acceptance or rejection within 30 days from the Request Date. If accepted, the Recordal will be valid for one year and may be renewed. During this process, the Customs will double check the Recordal Request with the IP Office.

However, the Official Fees for the Recordal has yet to be issued by the Ministry of Finance. We expect the fees to be announced before the end of 2017.

Customs Restraint

Article 7 of the Regulation allows the Customs to conduct a restraint for imported or exported goods that are suspected to have resulted from Trademark or Copyright infringements as long as the Trademark and Copyright have been recorded at the Customs Office. The Customs will inform the Right Holder or Owner on the basis of ample evidence which may be collected from the examination or intelligence analysis. 

The Right Holder or Owner shall confirm the request for Suspension no later than 2 days from the date of notification by the Customs Office. Should the Right Holder or Owner provide a confirmation, the Right Holder or Owner shall take the following steps:

1. Prepare the administrative requirements to file a Suspension Order to Court;

2. Provide a guarantee in the amount of IDR 100 million in a form of bank or insurance guarantee; and

3. Requesting the Suspension Order to the Court within 4 working days from the date of confirmation from the Right Holder or Owner to the Customs Office; and

4. The Customs may provide the summary of the imported and exported goods resulted from IP infringements in a form of trademark and copyright to fulfill the requirements for filing the Suspension Order to the Court.

Requesting Suspension Order

The Right Holder or Owner or the proxy thereof may request a Suspension Order for the imported or exported goods resulted from IP infringement based on the notification from the Customs or from the Right Holder or Owner’s own initiative. A physical examination may also be requested. 

Please note that the Suspension Order may only be filed to the Court, not to the Customs. There should also be ample evidence of IP infringement to be shown to the court. The Right Holder or Owner should also provide the Trademark certificate and/or the Copyright recordation notice and the details of the imported and exported goods suspected from IP infringements, as well as the bank/insurance guarantee to the Court. The Court will then issue a decision within 2 working days from the date of Suspension Order Request.

Once the Suspension Order has been issued by the Court, the Customs Office will inform the following in writing:

1. Importer, exporter, or the owner of the goods;

2. Right Holder or Owner; and

3. Directorate General of Intellectual Property

regarding the Suspension Order from the Court and to perform the Suspension Order. The Right Holder and Owner may request a physical examination. Please note that the examination will be attended by the Customs Office, representative of the Court, representative of the IP Office, and the importer/exporter/owner of the goods/the proxy. In the absence of the latter, the examination will still be conducted. 

Period of Suspension

The Customs will suspend the goods for 10 working days – effective from the date of the issuance of the Suspension Order from the Court. Please note that the period can be extended for another 10 days to the court by paying additional guarantee. 

Please note that under certain circumstances, exporter, imported to the owner of the goods may file a request to the Court to issue a written decision to the Customs Office to stop the Suspension. 

Exceptions

The Suspension shall not be applicable for:

1. Goods brought by passengers;

2. Goods brought by air/land/sea crew;

3. Border crossers; or 

4. Goods sent through postal services 

that are not intended for commercial purposes.

The Suspension is also not applicable for imported goods in transit/transshipment with the final destination out of Indonesia. In an event like this, the Indonesian Customs Office will notify the Customs Office of the destination country regarding the suspected goods. 

Should you have further query, please do not hesitate to contact us at [email protected].

Legal notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.