8 Proposed Changes in the Amendment of the Industrial Design Law in Indonesia
Indonesian awareness of the importance of protecting Industrial Design has continued to increase in the last five years. This can be seen from the application of Industrial Design registrations, which continues to increase significantly. From 2,319 applications in 2017, it grew to 2,835 in 2019, jumped again to 2,957 in 2021, and peaked in 2022 with 3,533 applications.
However, due to the evolution in the world of business and creativity, it is necessary to make changes to the Law of the Republic of Indonesia Number 31 of 2000 concerning Industrial Design (Industrial Design Law) so that its protection can be better and more relevant with the current business practices.
In addition, these proposed changes will align with international developments in Industrial Design and create a climate that further encourages creation and innovation as part of the Intellectual Property regimes. For this reason, DGIP proposes 8 (eight) main changes as follows:
1. Definition (Article 1)
Currently, Article 1 of the Industrial Design Law states that Industrial Design is the creation of a form of configuration, or composition of lines or colors, or lines and colors, or a combination thereof in three-dimensional or two-dimensional form which gives an aesthetic impression and can be realized in a pattern, three-dimensional or two-dimensional and can be used to produce a product, industrial commodity or handicraft. However, in its development, a more precise and firmer definition is needed that the object protected through Industrial Design Rights is the “outer appearance of the product,” which has an “aesthetic impression” that can be protected in whole or in part of its features, which can be two-dimensional and/or three-dimensional.
2. Protection System (Article 2)
Article 2 of the Industrial Design Law currently regulates that Industrial Design will only receive protection after the registration process; however, in the new bill, protection is also possible without going through the registration process simply by recording it. With details of the changes as follows:
- Registration System:
- Applies to Industrial Design, which has a relatively long design cycle;
- Protection period: 5 (five) years from the date of receipt;
It can be extended 2 (two) times every 5 (five) years by paying fees by Article 16 of the Industrial Design Law.
- Recordation System:
- Applies to Industrial Designs that have relatively short lifecycles in design or commercial. For example, textile products comply with the provisions of Article 25 of Trade Related Intellectual Property Rights (TRIPS) agreed upon by member countries of the World Trade Organization (WTO).
- Protection Period: 3 (three) years from the first publication date, as regulated in Article 17 of the Industrial Design Law.
- It can be switched into a registration system by 12 (twelve) months from the date it was first published, following the protection provisions such as the Registration System regulated in Article 5 (five) of the Industrial Design Law.
3. Non-Registrable Designs
Currently, the rules for non-registrable Industrial Designs are regulated in Article 4 (four) of Industrial Designs, which states that rights cannot be provided if the Industrial Designs conflict with applicable laws and regulations, public order, religion, or morality. However, more rule was added in the new Bill, and the article shifted to Article 6 (six).
Non-Registered Industrial Design if it meets one of the following criteria:
- Does not have an aesthetic impression;
- Features of the design are created for the purpose of technical function only;
- Folklore or traditional cultural expression that is not further developed or modified;
- Contrary to the provisions of laws and regulations, public order, religion and/or morality;
- Filed by an applicant who has bad intentions.
4. Landlord Liability/ Obligations for Shopping Center Management
To create a more conducive environment and uphold the enforcement of Industrial Design Rights, shopping center management should not allow the sale and/or duplication of goods that infringe Industrial Design Rights in their shopping center. However, it remains to be seen if the provision also applies to e-commerce sites.
5. Exercise of Industrial Design Rights by the Government
The Indonesian Government can exercise Industrial Design Rights based on national defense and security interests. Therefore, regulations that currently do not exist in the Industrial Design Law were made to safeguard strategic interests so that the rights remain sovereign and under the control of the Indonesian Government.
So the following rules were billed:
- Suppose the Government intends to exercise an Industrial Design Right, which is vital for the defense and security of the State. In that case, it must first notify the Industrial Design Right Holder in writing.
- The Government’s decision that an Industrial Design Right will be exercised solely by the Government is final.
- The Government’s exercise of Industrial Design Rights is carried out by providing reasonable compensation to Industrial Design Rights Holders.
6. Application from International Registration
The Hague Agreement, followed by the Geneva Act of 2 July 1999, regulates the mechanism for registering Industrial Designs in several countries through a single application, filed in one language, with one set of fees with a system administrated by the World Intellectual Property Organization (WIPO). For this reason, the new bill has been prepared to accommodate ratification and examine the possibility of ratification.
7. Industrial Design Board of Appeal
The proposed change will also regulate the presence of the Industrial Design Board of Appeal, with the following considerations:
- Accommodate the Applicant’s approval of the approval decision and cancellation of rights, which will be handled by the Industrial Design Appeal Commission, whose decisions are independent.
- Provide convenience for the public or third parties who approve a registered Industrial Design to apply for a permit through the Appeals Commission and can submit an appeal to the Commercial Court. This can also reduce the burden on the field in handling Industrial Design Rights cases.
- Cancellations through the Appeals Commission have been implemented in countries such as Japan, Australia, and the European Union.
Furthermore, an Appeal can be submitted against:
- Rejection of the application by the Applicant or their attorney;
- Correction by the Applicant or their attorney regarding the granting of Industrial Design Rights;
- Granting Industrial Design Rights by interested third parties.
8. Fiduciary Guarantee
The proposal also suggests that a registered Industrial Design can be used as an object of fiduciary guarantee, where the provisions regarding this matter will follow the conditions in Law Number 42 of 1999 concerning Fiduciary Guarantee.
Should you have further questions regarding Industrial Design in Indonesia or abroad, please contact us via [email protected].
- Directorate General Intellectual Property (DGIP)