Client Update 14 September 2017

Lawyers

 

New Regulation on Customs Recordation

Introduction

On 30 May 2017, the President of the Republic of Indonesia enacted Government Regulation No. 20 of 2017 on the Control of Import and Export of Goods Allegedly Constituting or Deriving from Intellectual Property Infringement ("GR No. 20/2017"). GR No. 20/2017 is essentially the implementing regulation of Law No. 10 of 1995 on Customs as amended by Law No. 17 of 2006 ("Customs Law").

GR No. 20/2017 contains a more comprehensive mechanism in dealing with the flow of imported and exported goods allegedly infringing the intellectual property right by the Directorate General of Customs and Excise ("Customs Office"). This mechanism is aimed to provide preventive-type of measures as well as procedures for the officers of Customs Office ("Customs Officers") in handling any suspected counterfeit goods shipped into or outside Indonesia by way of identification and verification against information on any relevant trademarks and/or copyrights recorded in their recordation database.

Below are the highlights of GR No. 20/2017:

Recordation System

Under GR No.20/2017, the owner or the right holder of trademarks and/or copyrights can file for recordation with the Customs Office. The requirements for filing the application for the recordation are as follows:

  1. Evidence of trademark and/or ownership;
  2. Information on the characteristics of the originality of products and/or the specification of copyrighted products; and
  3. Statement from the owner or right holder with respect to any consequences arising from the recordation.

The Customs Office will issue an approval or rejection letter to such application within 30 days upon receipt of such application. If it is approved, the trademark and/or copyright recordation will be valid for one year and is extendable.

Preventive Measure by the Customs Office

As a consequence of trademark and/or copyright recordation at the Customs Office, the Customs Officers should now be able to exercise their powers on their own initiative to take a preventive measure with respect to any import and export of goods suspected of infringing a certain intellectual property right. The preventive measure taken is, essentially, to notify the owner or right holder recorded in the Customs recordation database of any suspected counterfeit goods being shipped into or outside Indonesia together with sufficient evidence thereof if the Customs Officers identify such potential illegal activities.

Upon receipt of such notice, the relevant owner and/or right holder must give their response confirming their intention to seek for a suspension order ("Confirmation") to the Commercial Court. Such response must be sent within two days as of the date of notice given by the Customs Office.

If the relevant owner and/or right holder opts to file a petition for a suspension order ("Suspension Order"), they must file it within four business days as of the delivery of Confirmation to the competent Commercial Court and pay bond in the amount of Rp. 100 million to the Customs Office.

Enforcement of the Suspension Order by the Customs Office

In addition to the preventive measure as mentioned above, GR No. 20/2017 sets out the mechanism for the Customs Office to exercise its powers in relation to the enforcement of Suspension Order issued by the Commercial Court.

If the Commercial Court issues the Suspension Order, which is to be rendered within two business days as of the filing date, the Customs Office should enforce such Suspension Order at the latest within ten business days as of the receipt of the Suspension Order, which can be extended for another ten business days. In enforcing the Suspension Order, the Customs Officers will (i) send the notice of Suspension Order to the exporter, importer or the owner of goods, the owner or right holder of the recorded trademark and/or copyright and the Directorate General of Intellectual Property ("DGIP") and (ii) hold a physical examination upon suspected counterfeit goods according to the specified schedule as proposed earlier by the recorded trademark and/or copyright owner or right holder. In examining the suspected counterfeit goods, the Customs Officers will be accompanied by the recorded trademark and/or copyright owner or right holder, the representative of the Court and the representative of the DGIP, with or without the presence of the exporter, importer or the owner of goods.

Suspension Termination

The Customs Office is required to terminate the suspension upon (i) the expiry of suspension period; (ii) the expiry of extended suspension period; (iii) the issuance of order from the Commercial Court to terminate the suspension; and (iv) the initiation of other legal actions upon such alleged intellectual property infringement.

Upon the termination of suspension, the suspended goods will be handled under the applicable laws and regulations, and the bonds will be drawn to reimburse any operational costs incurred by the Customs Office in taking the Preventive Measure and enforcing the Suspension Order.

Exclusion

The provisions on suspension will not apply to (i) passenger’s belonging, (ii) transportation crew, (iii) border crossers, (iv) shipment through postal or courier service, all of which are not intended for commercial purpose.

GR No. 20/2017 came into effect on 30 August 2017. The implementation of the regulation is still untested and yet it will provide broadened protection against the intellectual property infringement.

 

   

*** 

AHP Client Alert is a publication of Assegaf Hamzah & Partners. It brings an overview of selected Indonesian laws and regulations to the attention of clients but is not intended to be viewed or relied upon as legal advice. Clients should seek advice of qualified Indonesian legal practitioners with respect to the precise effect of the laws and regulations referred to in AHP Client Alert. Whilst care has been taken in the preparation of  AHP  Client Alert, no warranty is given as to the accuracy of the information it contains and no liability is accepted for any statement, opinion, error or omission.

Download

AREAS OF PRACTICE

  • Pic Mgmt

    Capital Markets

    As a full-service firm, we do a broad range of transactions covering the entire spectrum. Many are high profile and cement our position as a top-tier firm, including global equity offerings in reliance on Reg. S/Rule 144A, private placements, rights issues and other share-related offerings, such as convertible and exchangeable bonds. We also frequently advise on foreign offerings by issuers having significant interests in Indonesia, bond issuances under global offering rules, mergers, acquisitions, combinations of acquisitions and IPOs, consent solicitations and exchange offers of debt instruments listed on the Indonesia Stock Exchange or offshore. more »

  • Pic Mgmt

    Banking & Finance

    We are a leading force in the Indonesian banking & finance sector, advising on all manner of structured financing transactions, from simple secured or unsecured bilateral lending to multifaceted and complex credit facilities. We handle syndicated, club and bilateral loan documentation; project finance; property finance; acquisition finance; securitization and structured finance; regulatory and compliance issues; banking documentation and legal due diligence reporting. more »

  • Pic Mgmt

    General Corporate/M&A

    Our General Corporate/M&A practice provides advice on corporate governance, compliance, negotiating and drafting agreements, transaction structure, management and succession, legal due diligence reporting, formation of new entities, preparation of internal corporate documents and approvals, and completion of regulatory filings. With a wealth of experience amassed over the years in a wide variety of industries, we are strategically placed to provide you with everything you need to satisfy your corporate or M&A needs. more »

  • Pic Mgmt

    Debt & Corporate Restructuring

    We offer a full range of services in the debt & corporate restructuring arena, including advice on capital reduction, recapitalization and rescue schemes, financial sector takeovers, global asset recovery measures, mergers, creation of new entities, compromise schemes, demergers, buyouts, preparing documents and agreements, and ensuring statutory and regulatory compliance. As an AHP client, you will benefit from the unparalleled expertise gained by many of our senior lawyers as advisors or counsel to the Indonesian Bank Restructuring Agency (IBRA), which restored the country’s banking sector to health in the wake of the Asian financial crisis of 1997/98. more »

  • Pic Mgmt

    Foreign Direct Investment

    As an Indonesian law firm, we are obviously very much at home in our own jurisdiction, and so are able to make you feel at home as well. We know how things work in Indonesia, and have excellent relations with all the relevant government and regulatory agencies. We advise on the establishment of foreign investment companies, permanent business establishments, subsidiaries and joint ventures under the Indonesian FDI regime, merger & acquisition issues, foreign ownership caps, manpower issues, regulatory and environmental compliance, land acquisition, taxation matters -- in fact, everything you will need to get your venture off the ground and to keep it running smoothly throughout the investment lifecycle. more »

  • Pic Mgmt

    Competition Law

    We are widely recognized as being at the forefront of competition law in Indonesia, a rapidly developing field in which we have been instrumental in securing a number of ground-breaking judicial precedents in recent years. We consistently focus on the practicality and commerciality aspects, and combine legal expertise with in-depth experience across a wide range of industries so as to support the achievement of your strategic goals. more »

  • Pic Mgmt

    Dispute Resolution

    AHP has a very strong litigation team made up of one partner and 15 associates, all of whom are licensed advocates. We regularly represent clients in tort, contract, employment, internal corporate fraud, real estate, trademark and intellectual property disputes, to name but a few, with our primary focus being on commercial disputes. In the arbitration field, we have developed a formidable reputation for expertise and successful outcomes with the result that AHP advocates regularly appear before the Indonesian National Arbitration Board (BANI), as well as overseas arbitration bodies, such as the Singapore International Arbitration Centre. more »

  • Pic Mgmt

    Energy, Oil and Gas

    Our Energy, Oil and Gas practice provides top-quality legal advice and transactional support to domestic and international companies operating in the oil and gas, geothermal and renewable energy sectors. As a relatively compact firm, we are able to offer advice across the entire range of practice areas, thereby allowing us to deliver outstanding legal and commercial results for our clients in a practical and cost effective way. more »

  • Pic Mgmt

    Projects & Natural Resources

    As an Indonesian law firm, we know our country, our regulatory environment and our governmental system. Armed with this knowledge, we have garnered a wealth of experience down the years guiding both domestic and international companies through areas that are often fraught with competing interests and controversy. This experience provides us with the expertise and breadth of vision needed to ensure successful outcomes for your business objectives. In doing so, we offer a comprehensive suite of services, all of which dovetail seamlessly one with the other so as to provide holistic solutions to all your legal needs. more »

  • Pic Mgmt

    Telecommunications & Media

    Indonesia has seen exponential growth over the last decade in both the telecommunications and media sectors -- both areas in which AHP is in the vanguard of legal development. Besides having a professional interest in the two sectors, all of our lawyers in the T&M practice share a genuine passion for what they do and are therefore able to offer a combination of solid technical legal knowhow and an excellent understanding of the industries, the technical aspects, the principal factors at work, and the key players in Indonesia. more »

  • Pic Mgmt

    Real Property

    We offer a full range of real property services, including assisting with purchase and sale agreements, leasing agreements, title searches and registrations, conveyancing, and real property dispositions and bequests,.We also provide effective and reliable advice on the complex rules governing property ownership by non-nationals in Indonesia, an area of the law that is set for liberalization in the near future. more »

  • Pic Mgmt

    Intellectual Property

    Our IP practice offers trademark, copyright, patent and design searches and registration, and regularly mounts successful challenges on behalf of clients against decisions of the trademark authorities. Our IP associates are all members of key associations and are frequently engaged to speak at international events as recognized leaders in the field. Combing cutting-edge expertise and a high level of commercial acumen, we take pride in our results and a high level of customer satisfaction, and do our utmost to help ensure the protection of your rights and your peace of mind. more »

  • Pic Mgmt

    Islamic Finance

    At AHP, we understand Islamic finance and have been in the vanguard of the sector’s rapid expansion and development in Indonesia. With an in-depth understanding of the religious and conventional legal principles that underpin the Shariah sector, we believe we are uniquely well-positioned to offer expert and innovative advice on how to conduct any transaction in a Shariah-compliant manner, and to provide the kind of end-to-end solutions that you need. more »

  • Pic Mgmt

    Shipping & Aviation

    As an archipelagic nation, the shipping and aviation industries are of the utmost importance to the Indonesian economy. To accommodate the needs of ship owners, charterers, and marine insurers, we provide advice on all aspects of shipping law, including ship finance & security, sale and purchase, disputes arising out of charter parties, bills of lading, insurance, and collisions, and all other admiralty matters, while in the aviation sector, we assist with aircraft financing, sale and purchase, statutory obligations related to aviation, aviation safety and the aftermath of aviation accidents. more »

  • Pic Mgmt

    Labor Law

    We have a outstanding record in representing both individuals and corporations in employment matters, and in general advisory work on the complex rules governing the employment of expatriates in Indonesia. On the litigation front, we are frequently called upon to advise in cases involving internal fraud and embezzlement, and on the remedies available to employers. We also offer expert advice on employee compensation and incentive schemes (stock options, benefits, allowances), the employment implications of mergers, acquisitions and amalgamations, and the rights and benefits available to employees upon termination. more »

Assegaf Hamzah & Partners