The current development of information technology facilitates people to access information from all parts of the world, including everyday life products. These products generally have a “trademark” as an identity that distinguishes them from other similar products.
Trademarks are crucial for consumers to enable them familiar with the quality and characteristics of the products on the market.
Article 1 point 1 of Law No. 20/2016 on Trademarks and Geographical Indications stipulates that a trademark is a sign that can be displayed graphically in the form of images, logos, names, words, letters, numbers, color arrangement, in 2 (two) dimensions and/or 3 (three) dimensions. , sound, hologram, or a combination of 2 (two) or more of these elements to distinguish goods and/or services.
In practice, the trademark registration process is often mar by violations committed by irresponsible parties. For example, applying for trademark registration by copying well-known trademarks or producing counterfeit goods using the logos of trademarks for their personal economic interests.
The Directorate General of Intellectual Property (DJKI) is an institution mandated by the government to handle Intellectual Property Rights. DJKI is not only given the authority to carry out administrative registrations but also the authority to enforce laws that are juridical in nature.
DJKI is authorized to launch investigations into alleged criminal acts of Intellectual Property based on the Criminal Code as a formal law in accordance with Article 99 paragraph (1) of Law No. 20/2016 as follows:
“In addition to investigating officers of the Police of the Republic of Indonesia, certain civil servant investigators within the ministry carrying out government affairs in the legal field are granted special authority as investigators as referred to in the law that regulates criminal procedure law to launch investigations of trademark crimes.”
In general, intellectual property crime is a complaint offense, i.e. the party who complains must be the party suffering the loss, in which the complaint is a requirement for the public prosecutor to be able to prosecute.
The First to File principle legally protects the party who registered the brands/marks first. Following this principle, the party who can file a complaint is the owner of the trademark and/or the holder of the right to the trademark or a mark that is in the process of approval after its registration at the DJKI.
These parties are the ones who can file reports or complaints related to violations of rights to trademarks or marks in the process of approval after its registration at the DJKI in accordance with Article 1 points 24 and 25 of the Criminal Procedure Code.
The Civil Servant Investigator of Intellectual Property (PPNS KI) functions as an assistant to the police. The police manages the supervision and coordination in such investigations (the Coordination and Supervision of PPNS, or Korwas PPNS).
Police investigators are assigned to provide investigation technical guidance to PPNS. In practice, if the complaint is addressed to the police, the investigation must be done by the police by involving PPNS KI to provide expert testimony.
On the other hand, if an intellectual property crime complaint is addressed to the DJKI, PPNS KI will have to conduct an investigation under the coordination of the police in accordance with Ministerial Decree No.M.HH-01.H1.07.02 of 2015 on the Instructions of the Implementation of Management of Criminal Investigations in the Field of Intellectual Property.
If the case is addressed to PPNS KI, they have the authority to do investigations, searches, confiscations, and bring the suspects to the Public Prosecutors. The parties who can file a report on alleged criminal acts of IP are the IP Owner (in this case the registered trademark owners) and also the holders and/or licensee for the use of trademarks.
Article 100 of Law no. 20 of 2016 stipulates violations of IP criminal acts as follows:
- Violation of a party using a mark that is essentially or in its entirety the same with a registered mark belonging to another party for similar goods and/or services, may be subject to a maximum imprisonment of 5 (five) years and/or a maximum fine of Rp. 2,000. 000,000.00 (two billion rupiah);
- Violation of a party using a mark which is essentially the same as a registered mark belonging to another party for similar goods and/or services, may be subject to a maximum penalty of 4 (four) years and/or a maximum fine of Rp. 2,000,000,000.00 (two billion rupiah);
- Violation of another party using a mark that has similarities in principle with a registered mark, which can cause health problems, environmental disturbances, and/or human death, can be punished with a maximum sentence of 10 (ten) years and a maximum fine of IDR 5,000,000,000.00 (five billion rupiah).
Author / Contributor:
|Bhakti Putra Nugraha, S.H.|
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