The Supreme Court of Indonesia has issued Regulation No. 5 of 2012 laying down the requirements and procedure for obtaining a Provisional Decision on Intellectual Property Rights Violations. A Provisional Decision in Indonesia has a similar effect as a Search Warrant and Preliminary Injunction against alleged infringers. The new rules took effect on 30 July 2012 and aims to: (a) prevent the entry of alleged infringing products; (b) prevent elimination of evidence; and (c) stop infringement to prevent greater loss.
Under the new rules, in addition to submitting evidence of ownership and evidence showing an initial indication of infringement, the petitioner (trademark owner or its representative) shall enumerate the specific documents or evidence sought to be collected and preserved. Also, the petitioner is required put up a cash bond or bank guarantee equivalent to the value of the goods subject of the Provisional Decision.
Upon receipt of the petition, the same shall be assigned to a judge within twenty (24) hours. It shall be examined accordingly and a decision of acceptance or refusal is expected to be issued within forty eight (48) hours. The proceedings from the time of filing the petition up to the issuance of a Provisional Decision shall be confidential.
A decision granting the petition shall direct the Confiscation Clerk of Court for implementation, and to be accompanied by the petitioner and two (2) witnesses. The Confiscation Clerk, Petitioner, Respondent and Witnesses present at the location shall be required to sign the Minutes detailing the implementation of the Provisional Decision. Persons refusing to follow the Decision will be held criminally liable for non-compliance.
Within twenty four (24) hours from implementation of the Provisional Decision, both parties shall be notified of the said implementation including the Respondent’s right for hearing at which time the evidence/testimony of both parties shall be considered. Thereafter, the same judge may reaffirm the Provisional Decision at the latest within thirty (30) days from the issuance of said Provisional Decision.
In the event the petition is denied, the bond shall be returned to the petitioner.