Patent Translation Submission Requirement in Indonesia - AFFA IPR

Patent Translation Submission Requirement in Indonesia

Patent, Intellectual Property

In accordance with the latest amendment of the Indonesian Patent Law, all foreign applicants who wish to file patent applications in Indonesia have to provide the Indonesian IP Office (DGIP) with the following:   ⁠If the description is written in foreign languages other than English, the description shall be complemented with the English and Indonesian translations; or If the description is written in English, it shall be complemented by an Indonesian translation.   This new policy is aimed to enable the examiners to examine the applications more thoroughly, since in the past some applicants from non-English speaking countries only provided the description, claims, and figures in their languages and then in Indonesia.    Please be mindful of the deadline to submit the above within 30 working days from the filing date. Should you require any assistance for patent translation in Indonesia, please do not hesitate to contact us at [email protected].

Critical for Indonesia Importers: SNI Must Be Registered by the Trademark Owner and the Licensing Agreement Mus Be Recorded to DGIP - AFFA IPR

Critical for Indonesian Importers: SNI Must Be Registered by the Trademark Owner and the Licensing Agreement Must Be Recorded to DGIP

Intellectual Property, Trademark

One of the primary requirements for obtaining a Certificate of Indonesian National Standard (SNI) is the ownership of a valid and registered Trademark with the Directorate General of Intellectual Property (DGIP), whether by a domestic industrial company or a foreign producer. Products intended to be marketed in Indonesia must meet specific standards, including quality and safety requirements, as enforced through the SNI certification.   Thus, having a registered Trademark is no longer optional but necessary for conducting business in Indonesia. A Trademark is a product’s identity and a critical legal protection tool, especially in a highly competitive market. Securing a registered Trademark is a vital initial step for local and international business operators.   Furthermore, business operators who fail to obtain an SNI Certificate for products that are required to have one may face severe penalties, including administrative sanctions such as product distribution bans and product recalls, as well as criminal sanctions such as fines and the revocation of previously issued SNI certifications.   Requirements for Obtaining SNI To obtain an SNI Certificate, business operators must meet several requirements, including: Ownership of a registered Trademark in the appropriate class (e.g., Class 11 for gas stoves). A quality management system that complies with ISO 9001:2015. Adequate production facilities. Product testing at an accredited laboratory.    Registration Process and Eligible Parties for SNI Registration   Domestic Industrial Companies: Local producers holding a valid business license in Indonesia. Can directly apply for an SNI Certificate via SIINas (National Industrial Information System).  Foreign Producers: Must appoint an Authorized Representative in Indonesia to handle certification processes. Applications must be submitted by the Authorized Representative in Indonesia who holds the Trademark License for the product. Additional documents are required, such as a License Agreement and proof of license recordation with the DGIP.   If you are a distributor or importer, please ensure that the products you import have their Trademark registered in Indonesia by the foreign producer and that you have a License Agreement that has been recorded with the DGIP.   To simplify the process and ensure all documents comply with applicable laws in Indonesia, you can utilize the services of a trusted Trademark Consultant to handle all the necessary steps, including:   Registering the Trademark with the DGIP on behalf of the client (foreign producer). Drafting a License Agreement that adheres to Indonesian regulations. Recording the License Agreement with the DGIP to ensure the license has legal enforceability. Assisting clients in managing the documents required for the SNI Certificate, including consultations related to compliance with SNI standards. Should you need further information regarding Trademark registration as a requirement for obtaining an SNI Certificate, feel free to contact us via email at [email protected].

Geographical Indications for Indonesian Cuisine: Untapped Potential - AFFA IPR

Geographical Indications for Indonesian Cuisine: Untapped Potential

Intellectual Property, Geographical Indication1 Comment

According to data from the Ministry of Tourism and Creative Economy of the Republic of Indonesia, Culinary tourism accounts for about 30-40% of tourists’ total spending during their visit across the country. Names such as Kopi Gayo (Gayo Coffee), Kripik Sanjay (Sanjay Hot Chips), Sate Padang (Padang Satay), Pempek Palembang, Dodol Garut, Tahu Sumedang (Sumedang Tofu), Lumpia Semarang, Soto Madura, Bali Peanuts, and many more have become signature souvenirs that must be purchased when visiting these destinations.   These popular culinary products also bolster the local economy, as most originate from Small and Medium Enterprises (SMEs) that play a vital role in job creation and increasing local income. However, one untapped potential for these regional-based culinary items is their registration as Intellectual Property, specifically as Geographical Indications.   So, why have people yet to do this? What are the obstacles? And what’s the difference between a Trademark and a Geographical Indication in Indonesia? Here’s the explanation…   Legal Basis for Geographical Indications in Indonesia   Geographical Indications, along with Trademarks, are regulated by Indonesian Law No. 20 of 2016 on Trademarks and Geographical Indications (Trademark and GI Law). The law defines:   “A Geographical Indication is a sign indicating the origin of goods and/or products from a certain area that, due to geographical factors such as natural elements, human factors, or a combination of both, gives the goods and/or products a specific reputation, quality, and characteristics.”   Article 53 of the Trademark and GI Law:  The applicant can be the provincial or district/city government or an organization representing the community in a specific geographical area involved in producing goods and/or products such as:   natural resources; handicrafts; or industrial goods.   Thus, if a natural product like coffee, cloves, nutmeg, shrimp, pearls, woven goods, batik, or traditional cuisine comes from a specific geographic area, as long as it doesn’t conflict with national ideology, laws, morality, religion, decency, and public order, isn’t misleading, and is not the name of a plant variety (unless paired with a geographic indication term), it can be registered as a Geographical Indication.   Benefits of Geographical Indications   Registering a product as a Geographical Indication (GI) offers many benefits, particularly for local producers and communities involved in the production. Here are some of the main benefits of GI registration:   Legal Protection for Name Usage One of the most significant benefits of registering a product as a GI is legal protection over using the product’s name. GI registration ensures that only producers from the specified geographic area and those who meet specific production standards can use the name. This prevents others outside the area or those not adhering to the standards from using the GI name indiscriminately.For example, only producers from Garut who meet the standards can use the name “Dodol Garut.” This helps maintain the product’s reputation and quality in the market, ensuring it meets consumer expectations for taste. Increases Product Value and CompetitivenessProducts registered as GIs usually have higher market value due to their reputation associated with a particular area and recognized quality. Consumers are often willing to pay more for products known for their specific geographic origin, associating them with quality, uniqueness, and tradition. This enhances the product’s competitiveness in both domestic and international markets.For instance, Gayo Arabica Coffee, registered as a GI in 2018 by the Directorate General of Intellectual Property (DGIP), has a premium quality reputation in international markets, boosting demand and selling prices.   Preserves Tradition and Local KnowledgeGI registration helps preserve traditional knowledge and production techniques passed down through generations. The standards set in GI registration often include conventional production methods, ensuring producers adhere to established practices, thereby preserving the tradition.For example, “Tenun Ikat Sikka” (Sikka Traditional Weaving) from East Nusa Tenggara, registered in 2018 by DGIP, guarantees that every weaving product is crafted by local communities who consistently maintain their unique production techniques and cultural identity. Boosts Local EconomyRegistering a product as a GI can drive the local economy, from increasing product demand to making it a tourist destination. With GI recognition, local producers can better market their products domestically and internationally. Ultimately, communities’ incomes dependent on the product can increase, especially if they manage the production center as a tourist destination that offers added value for visitors.For example, Kintamani Arabica Coffee from Bali registered as a GI, has significantly boosted the economic standing of coffee farmers in the area. Builds International Reputation and BrandingProducts registered as GIs are typically easier to promote in international markets due to their reputation linked to a specific geographic area. GIs help products gain global recognition and become stronger brands. Moreover, GI registration protects products from unauthorized use in international markets.Today, Indonesia is recognized as a high-quality coffee producer. Over 50 coffee-related Geographical Indications are registered with DGIP, making it the dominant GI category. Prevents Counterfeiting and FraudThe legal protection a Geographical Indication provides prevents the growth of counterfeit or lower-quality products using the same name to exploit the registered product’s reputation. This safeguards the original product’s quality and integrity in the eyes of consumers, protects the original producers from losses, and prevents consumers from being deceived.For example, if “Sumedang Tofu” were registered as a GI, it could prevent parties outside Sumedang from using the name without permission or failing to meet production standards. Strengthens Consumer RelationshipsConsumers tend to trust GI-registered products because they know the product is made to specific standards and has unique characteristics tied to its geographic origin. This helps build trust between producers and consumers, which is key for long-term success.Why Have Many Local Culinary Products Not Been Registered as GIs?   There are several reasons why culinary delights like Padang Satay, Sumedang Tofu, and Madura Soto have not been registered as Geographical Indications (GI) despite their significant potential as distinct regional products:   Lack of Awareness or Knowledge About Geographical IndicationsMany local producers, organizations, or even local governments may need to fully realize the potential benefits of Geographic Indication protection. Coordination Required for RegistrationGI registration requires…

Key Proposed Amendments to the Indonesia's Patent Law - AFFA IPR

Key Proposed Amendments to the Indonesia’s Patent Law

Patent, Intellectual Property

The proposed amendments to Indonesia’s Patent Law, specifically the second revision of Law No. 13 of 2016 on Patents, are designed to modernize the country’s legal framework to better align with the evolving economic environment, international obligations, and the rapid pace of technological advancement. These updates aim to make Indonesia’s Patent System more adaptable and responsive to contemporary needs, while also harmonizing it with international standards.   The key focus of the proposed amendments is to align Indonesia’s Patent Regulations with global agreements, such as the TRIPS Agreement under the World Trade Organization (WTO). This alignment is crucial to ensuring that Indonesia’s Patent System meets international standards, thereby enhancing the protection of intellectual property within the country. The proposed amendments also seek to simplify the Patent Registration process, making it more efficient and accessible, which is expected to encourage greater innovation and research. By improving these processes, the government aims to boost Indonesia’s economic competitiveness and attract more investment in research and development.   The process of drafting these proposed amendments involved extensive consultation and collaboration. Internal discussions within the Ministry of Law and Human Rights (Kemenkumham), coupled with Focus Group Discussions (FGDs) with various stakeholders, played a significant role in shaping the draft. The Academic Manuscript and draft law underwent continuous refinement, ensuring the proposed changes were well-founded and thoroughly considered.   The proposed amendments introduce several critical updates to the Patent Law. One of the most significant changes is the redefinition of what constitutes an invention, particularly in light of new technologies like the Internet of Things (IoT), 5G, and Artificial Intelligence (AI). The novelty grace period has also been extended from six to twelve months, allowing inventors more time to secure their Patents after initial publication. Additionally, the proposed amendments clarify and strengthen the enforcement of Patent Rights, providing clearer guidelines on what constitutes infringement and how it can be addressed.   Other important changes include provisions that simplify the Patent Application process and allow for re-examinations, giving the applicants the much needed opportunity to correct or improve their applications post-submission. The proposed amendments also allow Patents to be used as fiduciary guarantees, thereby enhancing their value as financial instruments. Furthermore, the proposed law introduces measures to facilitate the transfer of technology, ensuring that Patents contribute to broader economic and technological growth in Indonesia.   We herewith summarize the key proposed amendments for your perusal:   Current Patent Law Proposed Amendments 1. DEFINITION OF INVENTION Article 1 (2):  Invention means an idea of an inventor embodied into a specific problem solving activity in the field of technology in the form of product or process, or refining and developing product or process. Article 1 (2) to be amended as follows:  Invention means an idea of an inventor embodied into a specific problem solving activity in the field of technology in the form of product or process, or refining and developing product and/or process, systems, methods and uses. Reasons: The rapid development of technology, Internet of Things, 5G Technology, Artificial Intelligence, has given rise to different interpretations of the category of invention claims, so that many applications related to this technology have been rejected. Also, to keep up with developments in international practice, it is necessary to change the definition of invention. Adjusting Law Number 6 of 2023 concerning the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation into Law: (1) Addition of the category of Simple Patents “Simple Methods” and (2) Implementation of Patents-methods, systems, and uses. 2. NOT INCLUDE IN INVENTIONS Article 4(c):  Inventions do not include: c. rules and methods in conducting activity of: involving mental activity; games; and business. Article 4(c) to be amended as follows:  Inventions do not include: c. methods in conducting activity of: involving mental activity; games; and Business. Reason: Rules = Methods Article 4(d):  Inventions do not include: d. rules and methods containing only computer program; Article 4(d)to be amended as follows:  Inventions do not include: d. computer program; Reasons: Computer Program is fully within the scope of the Copyright Law; Computer Program means a set of instructions that are expressed in the form of languages, codes, schemes, or in any form that is intended for a computer to perform specific functions or to achieve certain outcomes. Inventions implemented on computers, their arrangements are grouped into categories of systems, methods, and uses, in accordance with the expansion of the definition of Inventions to be regulated in the proposed amendment. Article 4(f):  Inventions do not include: f. discovery in the form of: new use of existing and/or known product; and/or new forms from existing compound which does not generate significantly enhanced efficacy and contains different relevant known chemical structures to compound. To be repealed Reasons: This article is an obstacle to the industrialization of local drugs that should be able to encourage public welfare, especially in the health sector, in addition to being an incentive award. Causing the local industry that was previously a drug producer to become an industry that only operates as a distributor, or an industry in the form of finished drugs to switch to an industry that only makes the packaging of the drug and not the elements of the drug. Article 9(c):  Inventions do not include: c. any theory and method in the field of science and mathematics; To be moved to Article 4(f) Inventions do not include: f. any theory and method in the field of science and mathematics; Reason: Theory and method in the field of science and mathematics are not inventions because they do not fit the definition of invention because they do not solve specific problems in the field of technology. 3. NOVELTY GRACE PERIOD Article 6(1):  The Invention is not deemed to have been published provided that within period of 6 (six) month prior to the Filing Date. Article 6(1) to be amended as follows:   The Invention is not deemed to have been published provided that within period of 12 (twelve) month prior…

Indonesia Extends the Trademark Non-Use Period from 3 to 5 Consecutive Years - AFFA IPR

Indonesia Extends the Trademark Non-Use Period from 3 to 5 Consecutive Years

Intellectual Property, Trademark

On March 31, 2020, Indonesia officially entered the COVID-19 pandemic period with the enactment of Government Regulation Number 21 of 2020 concerning Large-Scale Social Restrictions in the Framework of Accelerating the Handling of Corona Virus Disease 2019 (Covid-I9). After facing various challenges, both for the community, the business world, and the government, the pandemic status in Indonesia was officially lifted on June 21, 2023, and changed to endemic based on the Presidential Decree of the Republic of Indonesia Number 17 of 2023 concerning the Determination of the End of the Corona Virus Disease 2019 (COVID-19) Pandemic Status in Indonesia. In post-pandemic recovery efforts, the government prioritizes economic recovery by paying attention to the needs of Small, and Medium Enterprises (SMEs).  Taking into account the specific conditions of the Indonesian economy, which hugely relies on SMEs that have limited capital and can change at any time and force majeure, through Decision Number 144/PUU-XXI/2023, which was read out at the Constitutional Court (MK) on Tuesday, July 30, 2024, an adjustment was made to the time limit for Trademark non-use period from three to five consecutive years. This case began when Ricky Thio faced a Cancellation Action for his Trademark based on Article 74 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications (Trademark Law) at the Commercial Court at the Central Jakarta District Court with case number 28/Pdt.Sus HKI/Merek/2023/PN Niaga Jkt.Pst from Zhejiang Dahua Technology Co., Ltd. wanted the cancellation of the Trademark “” with registration number IDM000553432 because it was considered not to have been used for three consecutive years. According to Ricky Thio, this situation raises uncertainty in the Trademark protection provided by the government, which has the potential to make SMEs hesitate to register their Trademarks.   Timeframe for Filing a New Trademark Cancellation Action In Decision Number 144/PUU-XXI/2023, the Constitutional Court saw the importance of adjusting the non-use time limit to 5 (five) consecutive years. This is closely related to the time limit for filing a Trademark Invalidation, which is 5 (five) years from the date of Trademark registration, as stated in Article 77 paragraph (1) of the Trademark Law. Although cancellation and invalidation are different things, the regulation is placed in the Chapter “Cancellation and Invalidation of Trademarks” in the Trademark Law.   Thus, without intending to ignore the tendency of countries that adhere to the civil law system, the adjustment of the time limit for non-use of registered Trademarks to 5 (five) years is to provide justice for all registered Trademark owners so that it does not conflict with the Principle of National Treatment and is in line with the provisions contained in Trademark Invalidation. Based on all the legal considerations above, the Applicant’s argument questioning the unconstitutionality of Article 74 paragraph (1) of the Trademark Law, especially the phrase “3 (three) years” is legally justified. In Decision Number 144/PUU-XXI/2023, the Court partially granted Ricky Thio’s request so that the changes to the article related to the deletion of the Trademark due to the Decision are as follows: Before the Constitutional Court Decision After the Constitutional Court Decision Article 74 paragraph (1) Trademark Law The cancellation of a registered Mark may also be submitted by a third party who has an interest in the form of a lawsuit to the Commercial Court based on the ground that the Mark has not been used for 3 (three) consecutive years in the trade of goods and/or services from the registration date or the last use. Article 74 paragraph (1) Trademark Law The cancellation of a registered Mark may also be submitted by a third party who has an interest in the form of a lawsuit to the Commercial Court based on the ground that the Mark has not been used for 5 (five) consecutive years in the trade of goods and/or services from the registration date or the last use. Article 74 paragraph (2) Trademark Law The reasons for an non-used Mark as referred to in paragraph (1) are invalid in the event of: a. import ban; b. temporary prohibition that is related to the permit for the distribution of goods that use the relevant Mark or a decision from an authorized party; or c. other similar prohibitions that are established with Regulation of the Government. Article 74 paragraph (2) Trademark Law The reasons for an non-used Mark as referred to in paragraph (1) are invalid in the event of: a. import ban; b. temporary prohibition that is related to the permit for the distribution of goods that use the relevant Mark or a decision from an authorized party; or c. other similar prohibitions, including in conditions of force majeure that are established with Regulation of the Government.   Force Majeure can be Used for Exceptions Force Majeure can be a legitimate reason for Trademark owners who cannot use their registered Trademark or cannot run their business normally. The Constitutional Court (MK), in Decision Number 144/PUU-XXI/2023, emphasized the importance of this exception. Force Majeure generally refers to events or effects that cannot be predicted or controlled, such as natural disasters (floods, hurricanes, earthquakes) or human actions (riots, strikes, war) that prevent someone from fulfilling their obligations. In this decision, pandemic conditions such as COVID-19 are considered Force Majeure, which justifies an exception for Trademark owners who experience difficulties using and producing their Trademarks.  The consequence of Decision Number 144/PUU-XXI/2023 is that the provisions of the Trademark Law must be adjusted to the decision. This is, of course, in line with the explanation of Article 10, paragraph (1) of Law. No. 07 of 2020 Third Amendment to Law Number 24 of 2003 concerning the Constitutional Court in conjunction with the Stipulation of Government Regulation instead of Law Number 1 of 2013 concerning the Second Amendment to Law Number 24 of 2003 concerning the Constitutional Court to Become a Law in conjunction with Law No. 8 of 2011 concerning Amendments to Law Number 24 of 2003 concerning the Constitutional Court in conjunction with Law Number 24 of…

AFFA Represented Guangzhou Sanwich Biology Technology, Co., Ltd. in a Succesful Trademark Invalidation Action in Indonesia - AFFA IPR

AFFA Represented Guangzhou Sanwich Biology Technology, Co., Ltd. in a Succesful Trademark Invalidation Action in Indonesia

Intellectual Property, Trademark1 Comment

On June 11, 2024, the Commercial Court at the Central Jakarta District Court granted AFFA IPR’s lawsuit, in this case representing Guangzhou Sanwich Biology Technology, Co., Ltd., to invalidate the SEVICH Mark with Registration Number IDM000917666, which gave a decision that the mark had similarities in essence and registered in bad faith. So, how does the “first-to-file” concept apply if there is a case like the one above? The SEVICH Trademark was first registered in China on March 21, 2016, by our client, Guangzhou Sanwich Biology Technology, Co., Ltd., in Class 3, which includes “Cleaning preparations; Abrasives; Essential oils; Toothpastes (pieces).” This Trademark has also been registered in the United States, Mexico, the United Kingdom, and the European Union. This business has expanded in Asia, and this year, SEVICH plans to be sold and distributed in Indonesia. However, before it could be applied for in Indonesia, it was discovered that the SEVICH Mark had been registered since November 2021 by another party. The Mark has the same writing, pronunciation, and logo and is registered in the same class. As a result, our client could not obtain registration in Indonesia, even though it should have had exclusive rights to use the Mark in trade. Therefore, our client filed a lawsuit for invalidation of the Trademark. The lawsuit was filed in March 2024 against Jong, Sylvia (hereinafter referred to as the Defendant), owner of the SEVICH Trademark in Indonesia with number 25/Pdt.Sus-HKI/Merek/2024/PN.Niaga.Jkt.Pst. The Defendant certainly does not easily give up the registered Mark. One of the points in their answer stated that they were the first registrants, so they are the party who has the Exclusive Right to use the SEVICH Mark in Indonesia, according to Article 1 Number 5 of Law Number 20 of 2016 concerning Marks and Geographical Indications (Trademark Law): “Right on Mark means the exclusive right granted by the State to a registered Mark owner for a definite period to use his/her Mark or authorize others to do otherwise.” Applicant in Bad Faith One of the rulings in the Decision 25/Pdt.Sus-HKI/Merek/2024/PN.Niaga.Jkt.Pst. stated that the defendant was a registrant with bad faith in registering the SEVICH mark with Registration Number IDM000917666. Applicants who have bad intentions based on the explanation of Article 21 paragraph (3) of Law Number 20 of 2016 concerning Trademarks and Geographical Indications are applicants who are reasonably suspected that in registering their Mark, they have the intention to imitate, plagiarize, or follow another party’s Mark for the benefit of their business, causing conditions unfair business competition, deceiving or misleading consumers. For example, a Trademark application takes the form of writing, a painting, a logo, or the same color arrangement as a Trademark belonging to another party or a Trademark that has been generally known to the public for many years, imitated in such a way that it has similarities in essence or its entirety to the already known Trademark. From this example, there has been bad faith on the part of the Applicant because at least it should be known that there was an element of intentionality in imitating a well-known Mark. The concept in this article is undoubtedly in line with the Permanent Decree of the Supreme Court of the Republic of Indonesia No. 39K/Pdt/1989 dated 24 November 1990 which reads, “That every act of using a Mark which is confusing and deceptive and confuses the opinion and visuals of the general public is qualified as containing elements of bad faith and unfair competition,” and Permanent Decision of the Supreme Court of the Republic of Indonesia No. 220 K/Pdt/1986 which states, “Local entrepreneurs are obliged to use marks with national identity, not plagiarize foreign names or marks, because this can mislead consumers about the origin of a good or service.” Until finally the deliberative meeting of the Commercial Court Panel of Judges at the Central Jakarta District Court ordered the Directorate General of Intellectual Property (DGIP) to invalidate the SEVICH Mark registered No. IDM000917666 on behalf of the defendant by registering the invalidation of the Mark from the General Register of Marks and announcing it in the Official Mark Gazette. Never Risk Registering Other Party’s Trademark to Begin With In a Trademark Invalidation lawsuit, if the trademark being sued is similar in essence or its entirety, and there are indications that another party registered the trademark in bad faith towards the actual owner of the trademark, and this can be proven in court, then the first to file principle can be overridden. The actual rights of the Mark owner can be restored through a court decision in Indonesia, and the Mark owner can attach proof of the decision to the Trademark Office, in this case, the DGIP, during the examination process of the Mark registration application at a later date. Should you have further questions regarding Trademark registration and protection in Indonesia and/or abroad, do not hesitate to email us at [email protected].

The Indonesian Constitutional Court Ruled Article 10 of the Copyright Law Unconstitutional - AFFA IPR

The Indonesian Constitutional Court Ruled Article 10 of the Copyright Law Unconstitutional

Intellectual Property, Copyright

On February 29, 2024, the Constitutional Court of the Republic of Indonesia (MKRI) decided case Number 84/PUU-XXI/2023 concerning Material Review of Law Number 28 of 2014 concerning Copyright (Copyright Law) and declared Article 10 of the Copyright Law to be contrary to the 1945 State Constitution of the Republic of Indonesia (Constitution of Indonesia). How is this possible?   This case began when PT Aquarius Pustaka Musik, PT Aquarius Musikindo, and songwriter Melly Goeslaw (hereinafter referred to as the Petitioner) discovered that songs created and/or owned Copyright were being used by a User Generated Content (UGC)-based digital service platform. In early 2020, the Petitioner even filed a civil lawsuit against Bigo Technology Ltd. as the digital service platform ‘Likee’ manager to the Central Jakarta District Court’s Commercial Court for using songs whose Copyright is under his auspices without permission. Unfortunately, the panel of judges rejected the lawsuit because the videos shown were UCG-based, i.e., originated, created, and uploaded by application users, not by Bigo. Thus, Bigo cannot be held responsible.   The Indonesian Copyright Law Does Not Yet Regulate UGC   The rejected lawsuit to Bigo and Likee could occur because there is a vacuum in the Copyright law used for UGC-based platforms. Hence, the platform manager ignores and deliberately hides behind the Circular Letter of the Ministry of Communications and Informatics Number 5 of 2016, Chapter V-C Provisions Number 2(b), which states that the UGC Platform is not responsible for goods and/or services containing content that violates Intellectual Property Rights if it can be proven that there was an error and/or negligence on the part of the merchant or Platform user.   In fact, in Article 28-C and 28-D paragraph (1) of the Constitution of Indonesia, the state guarantees its citizens to benefit from science and technology and the arts to improve the quality of life and for the welfare of humanity, as well as to obtain fair legal certainty. Thus, the Human Rights of the Petitioners must be protected, promoted, upheld, and fulfilled by the State, in this case, the government as mandated in Article 28-I paragraph (4) which explicitly states that “Protection, promotion, enforcement and fulfillment of rights Human rights are the responsibility of the state, especially the government.”   One of the methods that the state must take in protecting and upholding the fundamental rights of the Petitioners is by establishing laws and regulations that can substantively and procedurally guarantee and ensure the implementation of these rights by the instructions of Article 28-I paragraph (5) the Constitution of Indonesia. Therefore, on the one hand, the State must create a legal norm or rule with a precise, firm formulation, without multiple interpretations, and includes or encompasses matters aimed at realizing these fundamental rights. On the other hand, the Petitioners are entitled to the certainty of the quo regulations. This is inevitable for its continuity in a rule-of-law state as required in Article 1 paragraph (3) of the Constitution of Indonesia, which states, “The state of Indonesia is a state of law.”   As stated in Indonesian Copyright Law:   Article 10 Managers of business premises are prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location under their management.  Article 114 Every Person managing business premises in all its forms who deliberately and knowingly allows the sale and/or duplication of goods resulting from infringement of Copyright and/or Related Rights in the premises that they manage as referred to in Article 10 shall be sentenced with a maximum fine of Rp100,000,000.00 (one hundred million rupiahs). Because Articles 10 and 114 of the Copyright Law are deemed not to include protection for UGC and the state is obliged to provide legal certainty, the Petitioner also submitted a Material Review of the Copyright Law to the Constitutional Court on July 30, 2023, based on the Petitioner’s Petition Submission Deed Number 83/PUU/PAN.MK/AP3/07/2023 was recorded in the Constitutional Case Registration Book on August 3, 2023, with Number 84/PUUXXI/2023, corrected and accepted by the Registrar of the Court on September 8, 2023.   Final Verdict in Favor of the Creator Until then, the Constitutional Court’s decision stated that it had granted the Petitioners’ petition in its entirety and stated that Article 10 of the Copyright Law was contrary to the Constitution of Indonesia and did not have conditionally binding legal force as long as it was not interpreted as “Manager of trading places and/or Digital Service Platforms based on User Generated Content (UGC) is prohibited from allowing the sale, display and/or duplication of goods resulting from violations of Copyright and/or Related Rights on trading venues and/or digital services that it manages.”   In particular, the Constitutional Court stated that the Petitioners’ human rights, as outlined in the Constitution of Indonesia, were impaired due to the enactment of Article 10 and Article 114 of the Copyright Law, considering that the content of the two articles being reviewed did not or did not protect fair legal certainty, because the content was inadequate and too narrow so that it cannot reach/keep up with new phenomena that have emerged as a logical consequence of technological growth and development, where one of the consequences of technological progress, especially in the information sector, has been the violation of the constitutional rights of the Petitioners. Still, the perpetrators will easily avoid legal responsibility because the formulation of the article cannot be used as a basis for prosecuting perpetrators who violate the law.   Furthermore, the Constitutional Court stated that the material content of Article 10 and Article 114 of the Copyright Law is normatively very limited and narrow because it only emphasizes the Management of Trading Places, which are a venue for selling and/or duplicating goods resulting from violations of Copyright and/or Related Rights, despite their speed and sophistication. Information technology has created an extensive space for interaction or mass communication (between people or society) through the provision of digital service platforms, namely in the form of sharing-app, short-video creation…

FAQs: The Legal Framework of Trademark Protection in Indonesia - AFFA IPR

Frequently Asked Questions about the Legal Framework of Trademark Protection in Indonesia

Intellectual Property, Trademark

Prevailing Laws and Regulations Q: What is the primary legislation governing Trademarks in Indonesia?   A: Law No. 20 2016 on Marks and Geographical Indications (the Trademark Law) is the primary law concerning Trademark in Indonesia. Several provisions in the Trademark Law were then amended under the Law No. 11 Yeat 2020 in Job Creation, and then further amended under the Law No. 6 Year 2023 on the Enactment of a Replacement Government Regulation in Lieu of the Law No. 2 Year 2022 on Job Creation as Law.   Moreover, there are several by-laws that regulate more specific matters, such as, but not limited to:   Government Regulation No. 28 2019 concerning Types and Tariffs of Non-Tax State Revenues Applicable to the Ministry of Law and Human Rights. This regulation sets the official fees for various actions that can be filed before the Directorate General of Intellectual Property (DGIP) under the Ministry of Law and Human Rights of the Republic of Indonesia. Government Regulation No. 22 2018 concerning International Registration of Marks Under the Protocols Relevant to the Madrid Agreement Concerning the International Registration of Marks. This regulation covers all aspects of international registrations filed to or from Indonesia. Government Regulation No. 90 2019 concerning The Trademark Appeal Commission, which was established on 29 August 1995 concerning Procedures for Application, Examination and Settlement of Appeals at the Mark Appeal Commission. The Ministry of Law and Human Rights of the Republic of Indonesia Regulation No. 12 2021 concerning Amendments to the Ministry of Law and Human Rights of the Republic of Indonesia Regulation No. 67 of 2016 concerning Trademark Registration Decree of the Director General of Intellectual Property in the Field of Trademarks. The ministerial regulation prescribes, among others, the requirements of registration, classes of goods and services, rectification of issued certificates and recordals.   International Law Q: Which international Trademark agreements has Indonesia signed?   A: Indonesia has ratified various agreements concerning Trademarks, such as the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Trademark Law Treaty and the Paris Convention.   Regulators Q: Which government bodies regulate the Trademark Law?   A: The Directorate General of Intellectual Property (DGIP) under the Ministry of Law and Human Rights of the Republic of Indonesia is the relevant body that administrates the protection of all Intellectual Properties, including Trademarks. The DGIP goes beyond regulating and implementing the law, it is also responsible for proactively disseminating the information pertaining to the importance of IP protection through various means, such as podcasts, YouTube videos, Instagram posts and seminars conducted around Indonesia. Should you need more information regarding Legal Framework of Trademark in Indonesia, please do not hesitate to contact us via [email protected].

The Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or other Written Works in Indonesia - A Closer Look at the Minister of Law and Human Rights Regulation Number 15 of 2024 - AFFA IPR

The Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or other Written Works in Indonesia – A Closer Look at the Minister of Law and Human Rights Regulation Number 15 of 2024

Intellectual Property, Copyright

The Minister of Law and Human Rights of the Republic of Indonesia, Yasonna Laoly, has officially ratified the Minister of Law and Human Rights Regulation (Permenkumham) Number 15 of 2024 concerning Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or Other Written Works.   What is meant by Secondary Use for Book Copyright and/or other Written Works are all activities as follows: printing; photocopy; scanning; screenshot; internet downloading; emailing; posting/uploading; storing; sharing; read aloud in a form of video and/or audio; live performing; or web scraping.   This regulation, published on June 12, 2024, is expected to increase income for book creators and publishers in Indonesia. It also regulates who receives, pays, and distributes royalties for books and other written works.   More specifically, this Regulation describes the following provisions: Royalty Recipient Creator of books and/or other written works who has become a member of the Collective Management Organization (LMK) in the field of books and/or other written works. Royalty Payer Secondary Users include: education units; colleges; educational institutions; research institutions; ministries/institutions/regional governments; private businesses that carry out document duplication activities; photocopying service business; electronic system administrator; broadcasting institutions; artificial intelligence (AI) developer; other Secondary Users in accordance with statutory provisions. Imposition of Royalties The amount of Royalty for Secondary Use of Book Creations and/or Other Written Works is determined by LMK in the field of Books and/or Other Written Works, the amount of which is stated in a mutual agreement stipulated in a written agreement between LMK and Secondary Users, and ratified by the Minister.   Secondary Use rates for educational units, universities, educational institutions, and micro and small businesses can be adjusted by submitting an application letter to LMK with supporting evidence. Royalty Distribution Royalties that LMK has withdrawn will be collected and distributed only to Creators of books and/or other written works who have become members of the LMK, and this is done at least 1 (one) time in 1 (one) year. The Indonesian Publishers Association (IKAPI) acts as LMK Currently, IKAPI has been designated as the first LMK in this field, and a supervisory team formed by the Minister of Law and Human Rights will monitor its performance and finances. Requirements to Become an LMK The Ministry of Law and Human Rights is still accepting applications for operational permits as LMK in the field of Books and/or other Written Works with the following requirements: in the form of a non-profit Indonesian legal entity; obtain authority from the Creator and/or Copyright Holder to collect, gather, and distribute Royalties; have authorized persons as members of at least 200 (two hundred) people who represent the interests of the Creator and/or Copyright Holder; aims to collect, gather, and distribute Royalties; able to collect, gather, and distribute Royalties to Creators and/or Copyright Holders; member of the LMK federation organization in the field of books and/or other written works of international reproduction; And have bilateral/reciprocal agreements with LMK in the field of Books and/or other similar written works in at least 5 (five) countries, government of a country’s particular administrative region and/or certain entities.   With the existence of Minister of Law and Human Rights Regulation Number 15 of 2024, it is hoped that the welfare of authors of books and/or other written works can increase, as well as encouraging the spirit of creativity and the creation of quality works in Indonesia.   Should you have further questions regarding Royalty Management for Secondary Use Licenses for Book Copyrights and/or Other Written Works in Indonesia, please do not hesitate to email us at [email protected].   Source: Directorate General Intellectual Property

Consequences of Late Payment Annuity Payment in Indonesia - AFFA IPR

Consequences of Late Patent Annuity Payment in Indonesia

Patent, Intellectual Property

Indonesian Patent Law No. 13 of 2016 outlines the process for maintaining your Patent throughout its 20-year term. This involves making timely annuity payments to the Indonesian Patent Office, hereafter called the Directorate General of Intellectual Property (DGIP). Here’s a breakdown of the key points:   First Annuity Payment This covers the period from your filing date up to one year after the grant date. It’s crucial to settle this payment within 6 months of receiving the grant notice. There’s  no grace period. Missing this deadline  invalidates your Patent, with no option for revival. No outstanding debt is created in this case.   Subsequent Annuity Payments These become due one month before the anniversary of your original filing date for each remaining year of the Patent’s lifespan.  For example, if you filed your Patent application on November 9th, all subsequent annuity payments would be due on October 9th of each year.   Late Payment Option If you anticipate missing a deadline, you can request an extension from the DGIP through a registered and reliable Patent Consultant. This request must be submitted within 7 working days before the original due date. An extension allows for a maximum 12-month grace period, but comes with a penalty – a 200% surcharge on the official fee for the missed annuity.   Consequences of Missing Payments   Failing to make timely annuity payments, including missing the initial deadline or neglecting to request an extension with a surcharge, will result in the DGIP  invalidating your Patent. This means you lose all legal protection for your invention in Indonesia.   Recommendations:   Carefully record your Patent’s filing date and grant date to ensure timely payments. Consider setting calendar reminders for upcoming annuity deadlines. Consult a registered Patent Consultant for assistance with managing these payments and navigating potential late payment scenarios.   By staying informed and adhering to the regulations, you can ensure your Patent remains valid and enforceable throughout its 20-year term in Indonesia.   Should you have any questions about Patent annuity payments in Indonesia, please do not hesitate to contact us at [email protected].   Source: Law No. 13 of 2016 on Patents (Patent Law)