In order to be seen as a credible member of the international community and a dependable regional and global destination for investment, Indonesia has over the years become a signatory of the major intellectual property rights convention such as the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, as well as several WIPO treaties. In addition to this Indonesia has also ratified the Agreement Establishing World Trade Organization (WTO), and thereafter the TRIPS Agreement.

By joining the various international intellectual property conventions and ratifying the respective international agreements, a better framework for Intellectual Property Rights protection and a more favourable environment of the development of Intellectual Property rights has come about in Indonesia. This is as compliance with its obligations under the respective treaties and conventions has compelled the Indonesian government to restructure its legislation and to adopt the various international standards of protection specified in them.

Accordingly, many changes have been seen on Indonesia’s Intellectual Property landscape. Regarding the enforcement of Intellectual Property Rights, a comprehensive system has been implemented to enforce trademark rights in Indonesia. The trademark owner can file either a criminal or a civil action to enforce his rights. The choice of using civil actions for trademark infringement is rare, whereas the more common mode of enforcing trademark rights is by a criminal action by a complaint to the Police or to the relevant Officer in the Directorate of Intellectual Property Rights who have been granted special authority to conduct an investigation. Since this is considered a complaint delict, the state will not initiate any action without the complaint filed by a victim. Moreover, the rightful proprietor has to provide sufficient evidence to establish the infringement. This therefore necessitates the need to conduct a preliminary investigation. As to the time frame for action, the preliminary booking of the case and the preparations for the search, raid and confiscation warrants will take about a month.

The Police or the Officer in Directorate will then conduct their own investigation on the pirates and their partners or collaborators, to ascertain the infringing goods and the shops or factories selling or producing them before a raid is conducted. The Police raid will involve searches and the sealing off of multiple premises, arrests, seizure of infringing goods, machines used for the production of infringing goods, which will be used as evidence at the trial. The suspects will be summoned and interrogated and expert assistance from the trade mark owner may be requested.

The investigation report will then be forwarded to the Public Prosecutor and the criminal proceedings will be conducted in accordance to the Law No. 8 year 1981 concerning such proceedings. The suspects will be summoned again for interrogation by the Public Prosecutor. Should the Public Prosecutor consider the evidence as being sufficient, the case of criminal infringement of Intellectual Property Rights will be commenced in the respective General Court based on locus delicti (place where the Intellectual Property Rights crime was committed). The Court may impose both imprisonment with a maximum of 7 years and fine up to 5 billion Rupiahs.

Criminal action is usually appropriate in cases of counterfeiting and piracy. For cases of similar marks or use of a well-known mark on dissimilar goods, criminal enforcement is not usually an option and a civil trademark infringement action will be filed.

However, while Indonesia has a fairly well developed legislative framework in place, it continues to struggle with the problems of poor enforcement and dispute resolution mechanisms. The United States Trade Representative listed the problems in Indonesia as being on off “lack of effective Intellectual Property Rights enforcement, adequacy of the new regulations to reduce the production, distribution, and export of pirated optical media products and… deficiencies in Indonesia’s judicial system” (Letter from the International Intellectual Property Alliance to Ms Sybia Harrison, Special Assistant to the Section 301 Committee dated 2 December 2005).

The Government officials note that the structures are in place but prosecution of Intellectual Property Rights violations remain insufficient. Indeed, pirate optical media products (CDs, VCDs, DVDs and CD-ROMs) still dominate the local market, and 40 to 50 optical disc production plants remain in operation. This lack of effectiveness in the enforcement of Intellectual Property Rights has driven international companies such as Philips Electronics, Procter & Gamble, LVMH Fashion Group, Unilever and Microsoft to found the Indonesian Anti-Counterfeiting Society in 2003. This society aims to cooperate actively with the government and politics to fight piracy and counterfeiting.

There are however obvious positive indicators such as the increasing number of store owners sentenced to several years of imprisonment particularly in 2005, or the new Optical Disc Regulations passed in 2004, which took effect in April 2005. Moreover, being aware of the problems of enforcement of Intellectual Property Rights, the authorities has conducted several effective retail raids against shops selling pirated software in 2004 and 2005, resulting in the seizure and destruction of several hundreds thousand of copies of pirated software. As to the decisions by the courts in intellectual property matters it has to be said that the lower court decisions remain unpredictable but it is heartening to note that the Supreme Court has a more consistent record, especially in relation to cases involving well-known marks. The rulings by the court together with recent systematic improvements at the Trade Mark Office have made it much harder for famous marks to be registered by unscrupulous third parties.

Despite all these improvements, the United States officially announced in April 2006 that Indonesia still remains on the Priority Watch List in 2006 after having been placed again on the said list by the United States in 2003. Indeed the United States urges Indonesia to conduct more frequent raids on counterfeit factories, more frequent seizures of pirated goods and machinery used to make them, and also to ensure that courts impose deterrent jail sentences in respect of Intellectual Property Rights crimes. It however has to be noted that the United States is aware of Indonesia’s effort in this field and has praised Indonesia’s improvement in Intellectual Property Rights enforcement, especially in respect of new regulations and the establishment of a Ministerial-level national Intellectual Property Task Force. It is expected that Intellectual Property Rights enforcement will improve even more in the near future and everybody hopes and believes that the problems will decline as time passes.