Tuesday, April 16, 2024

How-to protect intellectual, industrial products in Indonesia

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Intellectual Property Rights (IPRs) protection constitutes an asset of a business as it sets novel ideas, creative designs, and other intangible objects as essential elements to enhance a company’s position in the market. The scope of IPRs protected in Indonesia includes Patents, Trademarks, Copyrights, Industrial Designs, Geographical Indications, Trade Secrets and Layout Designs of Integrated Circuits. This article will discuss the protection of intellectual property afforded by Indonesian law.

Governing law and regulation

  • Law No. 13/2016 concerning Patent
  • Law No. 20/2016 concerning Marks and Geographical Indications
  • Law No. 31/2000 concerning Industrial Design
  • Law No. 32/2000 concerning Integrated Circuit Layout Design
  • Law No. 30/2000 concerning Trade Secrets
  • Law No. 29/2000 concerning Plant Variety Protection
  • Regulation of Minister of Law and Human Rights (Permenkumham) No. 42/2016 on Electronic Intellectual Property Application Services

Copyright

Definition: 

Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Some of the works protected under copyright are written works, speeches, written or recorded songs, paintings, cinematographic works, and others 

Under Law No. 28/2014, copyright is an exclusive right of the author vested automatically based on the declaratory principle after works are embodied in a tangible form. 

General Rules:

Copyrights are exclusive rights comprising moral rights and economic rights. 

Copyright may be transferred, either in whole or in part by inheritance, grant, waqf, testament, written agreement, or other reasons that are justified in accordance with the provisions laws and regulations. The copyrights that can be transferred means only economic rights, whereas moral rights remain inherent to the Author.  

Rights:

Moral rights that endure for indefinite terms are rights to continue to include or to exclude their name on the copy with respect to the public use of their works, rights to use an alias or pseudonym, and rights to defend their rights in the event of distortion of works, mutilation of works, modification of works, or other acts which will be prejudicial to their honor or reputation. Moral rights that endure for a term of Copyright on the works concerned are rights to change their Works to comply with appropriateness in society and rights to change the title and subtitle of their works.  

Meanwhile, economic rights are the rights of the Author or Copyright Holder to obtain economic benefits from the publication of the works, reproduction of the works in all its forms, translation of the works, adaptation, arrangement, or transformation of the works, distribution of the works or their copies, performance of the works, publication of the works, communication of the works, rental of the works. Every person who exercises those economic rights is obligated to obtain permission from the Author or the Copyright Holder.

Period:

The period for economic copyright protection would differ depending on the type of works that are produced. Written works, speeches, music, paintings would be under copyright protection for the author’s lifetime plus 70 years. For legal entities, the works mentioned above would be protected for 50 years since its publication. Photographic works, video games, computer programs, are protected for up to 50 years since its publication. As for applied artworks, copyright protection will be for 25 years. 

Registration:

The copyright law provides the term “recordation of copyright” as opposed to “registration of copyright.”  Recordation is not mandatory; the protection arises automatically once an idea is expressed in a tangible form. If recordation is preferred, an application for copyright can be submitted online to the Directorate General of Intellectual Property (DJKI) under the Ministry of Law and Human Rights of the Republic of Indonesia.

License:

Unless agreed otherwise, holders of copyright and related rights can license their rights to third parties by virtue of a written agreement (Licensee) that entails the obligation to pay Royalties to the Copyright Holder or Related Rights owner during the Licensing period.

Patent

Definition:

A patent is defined as an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something or offers a new technical solution to a problem.

Law No. 13/2016 divides patents into two groups, which are general patent and simple patent. General patents include new inventions which consist of inventive steps that can be applied in the industry. Simple patents include new inventions, improvement of an existing product, or process that can be applied in the industry.

General Rules:

Inventions do not include:

  • Aesthetic works;
  • Schemes;
  • Rules and methods to perform activities which involves: 
  • Any mental activity;
  • Games;
  • Businesses.
  • Rules and procedures which only contain computer programs;
  • Presentation of information;
  • The discovery of 
  • new usage of an existing or known product; or
  • a new form of an existing compound that does not have significant merit improvement and which chemical structure difference is already known. 

An invention is patentable if it qualifies the following requirements: 

  • Novelty. It means that an invention must not be similar to any technology that has previously been disclosed at the date of filing of the application.
  • Involves an inventive step. It means that an invention must not be obvious to a person skilled in art. 
  • Industrially applicable. It means that an invention must be implemented in the industry as described in the patent application.

Rights and Obligations:

In the event of product-patent, patent holders have exclusive rights to exploit their Patent and prohibit other parties without their consent from making, using, selling, importing, renting out, delivering, or supplying for sale or rental or delivery of the patented product. In the event of process-patent, patent holders can prohibit other parties without their consent from using the patented production only for imported products solely produced from the use of the patented process to make products or conduct other activities as referred to as product-patent.

Every Patent Holder or Licensee is required to pay an annual fee. Patents also must be conducted and implemented in Indonesia. Such implementation for product-patent includes creating, adopting, or licensing products that are patented. For the patent implementation process includes creating, licensing, or adopting products resulting from a given process patent. For the implementation of Patents-methods, systems, and uses include making, adopting, or licensing a product that results from the methods, systems, and patented use. 

Period:

General patent protection lasts for 20 years from the national filing date, and no extension is allowed. Whereas the period for simple patent protection is for ten years since the national filing date and no extension is allowed.  Protection is granted to give time for the inventor to implement its own invention or authorize others to implement it. 

Registration: 

A patent application can be submitted online to the DGIP. The process for obtaining a simple patent usually is shorter, with a lower level of protection.

License:

A Patent Holder can give a license to other parties pursuant to either an exclusive or non-exclusive licensing agreement to perform all or in parts of patent holder rights. An exclusive agreement is an agreement to give a license to only one licensee, and/or in a certain territory. A non-exclusive licensing agreement means an agreement that can be given to several licensees and/or in several territories. This license is valid for the term of the License granted and is effective in the entire territory of Indonesia. 

Marks and geographical indications

  1. Marks

Definition:

A trademark is commonly understood as a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.

Under Law No. 20/2016, marks are any sign capable of being represented graphically in the form of drawings, logos, names, words, letters, numerals, colors arrangement, in 2 or 3-dimensional shape, sounds, holograms, or a combination of 2 or more of those elements to distinguish goods or services produced by a person or legal entity in trading goods or services.

Law No. 20/2016 differentiates marks into two types which are trademarks and service marks:

  • Trademark is defined as any mark used for goods traded to distinguish other similar goods.
  • Servicemark is defined as any mark used for services traded. 

General Rules:

Mark cannot be registered if it contradicts to the State ideology, laws and regulations, morality, religion, decency, or public order, if it is similar to, related to, or merely mentioning the goods and/or services being applied for registration, if it contains any element which may mislead the public in respect to its origin, quality, type, size, variety, intended use of goods and/or services being applied for registration or constitute a name of protected plant variety for similar goods and/or services, if it contains a description that does not correspond to quality, or efficacy of produced goods and/or services if it is devoid of any distinctive character,  if it constitutes a generic name and/or public sign, and/or if it contains a functional form.

An Application of Mark is refused if the Mark is substantively similar to or identical with a prior registered Mark of other parties or prior Mark application in respect of similar goods and/or services, a well-known Mark of other parties for similar goods and/or services, a well-known Mark of other parties for different goods and/or services complying with certain requirements, or a registered Geographical Indication. A Mark application is also refused if the Mark constitutes or is similar to the name or initials of a well-known individual, photograph, or name of legal entity owned by another person, unless under written consent from its proprietary. It is also refused if it constitutes duplication or is similar to the name or initial, flag, symbol or State emblem, or both national and international agency, unless under written consent from the authorities. Mark can be refused if it constitutes duplication or is similar to official signs or seals or stamps used by a country or Government agency, unless under written consent from the authorities. And last, mark Application is refused if it is submitted by an Applicant in bad faith.

Law 20/2016 also provides protection for national marks internationally. This protection may be requested in the form of an application from Indonesia that is designated to the international bureau through the Minister or an application designated to Indonesia as one of the designated countries is received by the Minister from the international bureau. The Application may only be applied by the applicant with Indonesian nationality, with a domicile or lawfully residing in the territory of Indonesia, or an applicant that is having real industrial or commercial business activities in the territory of Indonesia. 

Rights:

Right on Mark is the exclusive right granted by the State to a registered Mark owner for a definite period to use their Mark or authorize others to do otherwise.

Period:

A registered mark enjoys legal protection for ten years as of the filing date. The protection may be renewed for the same period.

Registration: 

Registration shall be done electronically to the DJKI. Some marks are non-registrable. Marks that conflict with state ideology, laws and regulations, morality, religion, decency or public order cannot be registered. 

License:

The registered Mark owner can be licensed to other parties to use the Mark for partial or entire types of goods and/or services for which the owner uses the mark. This Licensing agreement must be requested for recording to the DJKI otherwise, it does not bring legal effect to and be enforceable with third parties. Unless agreed otherwise the Licensing agreement will be enforceable and come into effect in all Indonesian territories.

  1. Geographical indication

Definition:

As for geographical Indication, it is defined as an indication or sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.

General Rules:
The law stipulates that geographical Indications is non-registrable if it contradicts State ideology, laws and regulations, morality, religion, decency, and public order. It also can not be registered if it misleads or deceives the public concerning reputation, quality, characteristics, source of origin, manufacturing process, and/or its usage. It is also non-registrable if it constitutes a name that has been used in plant variety and used for similar plant variety unless any additional term to indicate factors of similar geographical indication. 

An application of Geographical Indications may be refused if the related document is not verified and/or it has substantial similarity with a registered Geographical Indication.

Period:

Based on Law No. 20/2016, geographical indications are protected as long as the reputation, quality, and characteristics used to obtain the protection of geographical indications remain to exist.

Registration: 

Geographical indications are protected upon being registered by the DJKI. The geographical indication application can be submitted online to the DJKI to obtain protection. Geographical Indications may also be registered under an international agreement.

Industrial Design

Definition:

Industrial designs are commonly understood as compositions of lines or colors or any three-dimensional forms which give a special appearance to a product or handicraft.

Based on Law No. 31/2000, industrial design is a creation on the shape, configuration, or the composition of lines or colors, or lines and colors, or the combination thereof in a two- or three-dimensional form which gives an aesthetic impression and can be realized in a two- or three-dimensional pattern and used to produce a product, goods or an industrial commodity and a handy craft.

Rights:

The right holder to industrial design shall have the exclusive right to exploit their industrial design and to prohibit others who without their consent make, use, sell, import, export, and/or distribute the products that have been granted the right to the industrial design. 

Period:

The protection of the right to industrial design is granted for ten years since the filing date.

Registration: 

The right to an industrial design shall be granted based on an application. It is required to make a written request to register the right through the DJKI to obtain legal protection. The registration can be done online. The right to an industrial design will not be granted if an industrial design is contrary to the prevailing laws and regulations, public order, religion, or morals. An industrial design application can only be filed for one industrial design or several industrial designs that constitute a unity of an industrial design, or that have the same class.

License:

The Right Holder to Industrial Design shall have the right to grant a license to any other party on the basis of a licensing agreement in order to perform all industrial design rights unless agreed otherwise. The provisions of this license is just similar to other IPRs license. 

Integrated circuit layout design

Definition:

An integrated circuit is a finished or half-finished product that contains various elements, at least one of which is active, which are partly or entirely interconnected and integrated into a semiconductor to produce electronic functions. 

A layout design is a creation in the form of a three-dimensional layout design formed by various elements, at least one of which is active, of which parts of or all of the interconnections in an integrated circuit and the three-dimensional layout is meant for the preparation of making an integrated circuit.

Rights:

The right holder of layout design of integrated circuits shall have the exclusive right to “commercially exploited.” What is meant by commercially exploited is they shall prohibit others who without his approval make, use, sell, import, export, and/or distribute goods that contain the whole part of or some parts of the design that has been granted the right to the layout design of integrated circuit.

Period:

Protection of integrated circuit designs is granted to the right holder for ten years as of the date the design is first commercially exploited or from the filing date.

Registration: 

An application must be made to the DJKI to obtain legal protection, using the attachment included in the integrated circuit design law. In the event the integrated circuit has already been commercially exploited, the request for protection must be made within two years as of the date of first exploitation. The right to the layout design of an integrated circuit shall not be granted if a layout design of an integrated circuit is contrary to the prevailing laws and regulations, public order, religion, and morals.

Trade secrets

Definition:

Trade secrets are IPRs on confidential information in the field of technology and/or business that is not known by the public, has economic value as it is useful in business activities, and the confidentiality of which is maintained by its owner.

General Rules:

Not all confidential information is categorized as trade secrets, based on Law 30/2000, trade secrets should have these elements: 

  • confidentiality – if the information is known only by limited parties or is not known by the general public;
  • has the economic value – if the confidentiality of the information can be used for commercial activities or can increase economic profits; 
  • maintained confidentiality – if the owners or parties controlling it have taken proper and suitable steps and made an appropriate effort to maintain confidentiality. 

The scope of protection on trade secrets shall include methods of production, methods of processing (preparation), methods of selling, or other information in the field of technology or business that has economic value and is not known by the public in general.

Rights:

The owner of Trade Secret shall have the right to personally use his trade secret and to grant a license to or to prohibit other parties to use his Trade Secret or to disclose the Trade Secret to any third party for commercial purposes.

Registration: 

There is no registration system in place in Indonesia for trade secrets. However, any transfer of the right to trade secrets must be recorded at the DJKI. The information registered will only concern the administrative matters, does not include the substantive information regarding the trade secret itself. If not registered, the trade secrets’ concerns will not have any legal consequences on any third party. The DJKI will refuse to record a licensing agreement if such agreement directly or indirectly harms the Indonesian economy or cause unfair competition.

License:

Just like the other IPRs, unless agreed otherwise, the license can be given by the trade secret right holder to a third party to use his trade secret by applying to the DJKI. The trade secret right holder may still personally exploit its right unless agreed otherwise. A licensing agreement that is not recorded at the Directorate General shall not have any legal consequences on any third party. 

Plant variety protection

Definition:

Plant variety protection is defined as specific protection provided by the state for varieties of crops or plants produced by plant breeders through agricultural activities. 

Plant varieties refer to a group of crops/plants from one type or species that is denoted by its shape, growth, leaves, flowers, fruits, seed, and its genetic characteristics or genetic combination that can be differentiated from similar types or species by at least one determining attribute and when reproduced do not experience any change. Varieties that may be granted protection are those plants or species that are new, distinct, uniform, and stable and given a denomination.

Period:

The duration of plant variety protection shall be 20 years for seasonal plants and 25 years for annual plants.

Registration: 

Plant variety protection rights are the only IPRs not administered under the law ministry; it is under the authority of the Plant Variety Protection Office of the Ministry of Agriculture. Varieties that conflict with the prevailing laws, social order, ethics/morality, religious norms, health, and the conservation of the environment cannot be granted protection.

Ministry of Law and Human Rights services for IPRs

The law ministry provides electronic services to facilitate the protection of IPRs, which includes:

  • Electronic searches of IPRs.
  • Electronic filing system for registration of new IPRs applications.
  • Electronic filing system of IPRs infringement claims.
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