ProdukHukum Perdagangan

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INDUSTRIAL DESIGNS

(Law No. 31/2000 dated December 20,2000) BY THE GRACE OF GOD ALMIGHTY

THE PRESIDENT OF THE REPUBLIC OF INDONESIA, Considering:

a. that in order to promote industries capable of competing in the scope of national and international trade, it is necessary to create a climate conducive to creations and designs of communities in the industrial design field as part of the system of intellectual property rights;

b. that the above mentioned matte, also supported by the Indonesian nation’s cultural wealth and ethnic diversity constitutes a re source for the industrial design development;

c. that since Indonesia already ratified the agreement establishing the world Trade Organization covering the agreement on trade related aspects of intellectual property rights (TRIPs) by Law No. 7/1994, it is necessary to stipulate provisions on industrial designs;

d. that based on the considerations as meant in letters a, b, and c, it is necessary to promulgate a law on industrial designs;

In view of:

1. Article 5 paragraph (1), Article 20 and Article 23 of the Constitution of 1945;

2. Law No. 5/1984 on industrial affairs (statute Book of 1984 No.22, Supplement to Statute Book No. 3274);

3. Law No. 7/1994 on the ratification of the agreement establishing the world trade organization (Statute Book of 1994 No. 57, Supplement to Statute Book No. 3564); With the approval of:

THE HOUSE OF REPRESENTATIVES OF THE REPUBLIK OF INDONESIA DECIDES:

To stipulate :

LAW ON INDUSTRIAL DESIGNS

CHAPTER I GENERAL PROVISION

Article 1

1. Industrial designs shall be creations of form, configurations or compositions of lines or colours, or lines and colours, or combinations thereof in the form of three dimensions or two dimensions which give aesthetically impressions and can be manifested in three-dimension or two-dimension patterns and can be used for producing certain products, goods, industrial commodities or handicrafts.

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3. Applications shall be requests for the registration of industrial designs submitted to the Directorate General.

4. Applicants shall be parties submitting applications.

5. Industrial design rights shall be exclusive rights granted by the state of the republic of Indonesia to designers in connection with results of their creations for a specified period to exercise the rights by themselves, or approve other parties to do so.

6. Minister shall by the minister overseeing the ministry with a scope of task and responsibility covering the field of intellectual property rights, including industrial designs.

7. Directorate General shall be the Directorate General of Intellectual Property Rights subordinate to the Ministry led by the Minister.

8. Proxies shall be consultants of intellectual property rights as stipulated in this law. 9. Date of receipt shall be the date of receipt of applications already fulfilling the

administrative requirements.

10. Consultants of intellectual property rights shall be persons having expertise in the field of intellectual property rights and specially providing services in the fields of submission and settlement of applications for patent, trade marks, industrial designs and other fields of intellectual property rights and being registered as consultants of intellectual property rights at the Directorate General.

11. Licenses shall be licenses granted by holders of intellectual property rights to other parties through agreement on the basis of the granting of rights (instead of the transfer of rights) to enjoy economic benefits of industrial designs protected in a specified period and under certain requirements.

12. Priority rights shall be rights of applicants to submit applications originating in countries affiliated with the Paris Convention to obtain recognition that the date of receipt submitted to destination countries, which are also member of the Paris Convention or the Agreement Establishing the world Trade Organization, is the same as the date of receipt submitted in countries of origin for a period already stipulated on the basis of the Paris Convention

13. Day shall be working day.

CHAPTER II

SCOPE OF INDUSTRIAL DESIGNS Parts One

Industrial designs securing protection Article 2

(1) Industrial designs rights shall be granted to new industrial designs.

(2) Industrial designs shall be considered new if upon the date of receipt the industrial designs are not the same as previous disclosures.

(3) The previous disclosures, as meant in paragraph (2), shall be the disclosures of industrial designs before:

a. the date of receipt; or

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Article 3

Industrial designs shall be considered to have already been announced in the case of not later than 6 (sox) months before the date of receipt, the industrial designs:

a. being already displayed in national or international exhibitions in Indonesia which are formal or recognized as formal exhibitions;

b. being already used in Indonesia by designers in the framework of trial tests for the educational, research or development purposes.

Part Two

Industrial designs not securing Protection

Article 4

Industrial design rights can not be granted if the industrial designs contravene laws in force, public orderliness, religion end morality.

Part Three

Period of protection of industrial designs Article 5

(1) The protection of industrial designs rights shall be granted for 10 (ten) years, starting from the date of receipt.

(2) The date of commencement of enforcement of the protection period as meant in paragraph (1) shall be recorded in the General List of Industrial Designs and announced in the official Gazette of Industrial Designs.

Part Four

Subjects of industrial designs Article 6

(1) Parties entitled to obtain industrial design rights shall be designers or those receiving the rights from the designers.

(2) In the case of designers consisting of several people collectively, the industrial design rights shall be granted to them collectively, unless otherwise stipulated in agreements.

Article 7

(1) In the case of industrial designs being produced under official relations with other parties within their work environment, holders of the industrial design rights shall be parties for and/ or in which the industrial designs are worked on, unless there are agreements between both parties without reducing rights of designers, in the case of the use of the industrial designs being expanded beyond the official relations. (2) The provision as meant in paragraph (1) shall also apply to industrial designs

produced by other people on the basis of orders made under official relations. (3) In the case of industrial designs being produced under working relations or on the

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Article 8

The provision as meant in article 7 paragraphs (1) and (2) shall not eliminate rights of designers to have their name still mentioned in certificates of industrial designs, the general list of industrial design and official gazette of industrial designs.

Part Five Scope of rights

Article 9

(1) Holders of industrial design rights shall have exclusive rights to exercise industrial design rights that they own and to prohibit other parties from making, selling, importing, exporting and/ or distributing goods given industrial designs rights without their approval.

(2) Users of industrial designs in the interest of research and education shall be excepted from the provision as meant in paragraph (1), as long as they inflict no loss on reasonable interests of holders of the industrial designs rights.

CHAPTER III

APPLICATIONS FOR REGISTRATION OF INDUSTRIAL DESIGNS

Part One GENERAL

Article 10

Industrial designs rights shall be granted on the basis of applications. Article 11

(1) The applications shall be submitted in the Indonesian language to the Directorate General by paying the costs as stipulated in this law.

(2) The applications as meant in paragraph (1) shall be signed by applicants or their proxies.

(3) The applications shall contain:

a. the date, month and year of applications;

b. names, full addresses and citizenship of designers; c. names, full addresses and citizenship of applicants;

d. names and full addresses of proxies, in the case of the applications being submitted through proxies; and

e. names of countries and date of receipt of applications for the first, in the case of the applications being submitted by priority rights.

(4) The applications as meant in paragraph (2) shall be accompanied by:

a. physical examples or pictures or photos and description of industrial designs whose registration is applied;

b. Special power of attorney, in the case of the applications being submitted through proxies;

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(5) In the case of applications being submitted collectively by more than one applicant, the applications shall be signed one of the applicants by accompanying written approval from other applicants.

(6) In the case of applications being submitted by non-designers, the applications shall be accompanied by statements completed with sufficient evidence that the applicants have rights to the relevant industrial designs.

(7) The provision on the procedure for submitting applications shall be further stipulated by a government regulation.

Article 12

Parties submitting applications at first shall be considered holders of industrial design rights

Article 13 Every application can only be submitted for : a. one industrial design; or

b. several industrial designs which constitute a unit of industrial designs or have the same class.

Article 14

(1) Applicants domiciled outside the territory of the republic of Indonesia shall submit applications through proxies.

(2) The applicants as meant in paragraph (1) shall declare and choose their legal domiciles in Indonesia.

Article 15

Provisions on requirements for being able to appoint as consultants of intellectual property rights shall be stipulated by a government regulation, while the procedures for their appointment shall be stipulated by a presidential decree.

Part Two

Applications by priority rights Article 16

(1) Applications by using priority rights shall be submitted not later than 6 (six) months as from the date of receipt of applications which are received for the first time in other countries being members of the Paris Convention or members of the agreement establishing the World Trade Organization.

(2) The applications by using priority rights as meant in paragraph (1) shall be Accompanied by priority documents validated by offices executing the registration of industrial designs along with their translation copies in the Indonesian language not later than 3 (three) months as from the date when the period of submission of applications by priority rights ands.

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Article 17

In addition to the copies of applications as meant in article 16 paragraph (2), the Directorate General can ask the applications by using priority rights to be also accompanied by:

a. complete copies of industrial designs already given in connection with the registration for the first time in other counties; and

b. legitimate copies of other documents needed for facilitating the evaluation that the industrial designs are new.

Part Three

Date of receipt of applications Article 18

The date of receipt shall be the date of receipt of applications with the provision that applicants have already:

a. complete forms of applications;

b. accompanied physical examples or picture or photos and description of industrial design whose registration is applied; and

c. paid the costs of registration as meant in Article 11 paragraph (1). Article 19

(1) In the case of shortcomings in the fulfillment of the requirements and completeness of documents of applications as meant in Articles 11, 13, 14, 15, 16 and 17, the Directorate General shall notify applicants or their proxies so that the shortcomings are supplemented in 3 (three) months as from the date of dispatch of liters of notification on the shortcomings.

(2) The period as meant in paragraph (1) can be extended to another term of one month at the maximum on the basis of requests from applicants.

Article 20

(1) In the case of the shortcoming as meant in Article 19 paragraph (1) failing to be fulfilled, the Directorate General shall notify in writing to applicants or their proxies that their applications are considered to be withdrawn again.

(2) In the case of applications being considered to be withdrawn as meant in paragraph (1), all costs already paid to the Directorate General shall not be reimbursable.

Part Two

Withdrawn of applications Article 21

Applications for withdrawal of applications can be submitted in writing to the Directorate General by applicants or their proxies as long as the applications do not yet secure any decision.

Part Five

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As long as they are bound to active service up to 12 (twelve) months after retiring or stopping because of whatever reasons from the Directorate General, employees of the Directorate General or people because of their tasks working for and/ or on behalf of the Directorate General shall be prohibited from submitting applications, securing, holding or possessing rights connected with industrial designs, unless the ownership is acquired because of heritage.

Article 23

Starting from the date of receipt, all employees of the Directorate General or people because of their tasks working for and/ or on behalf of the Directorate General shall be obliged to keep secrecy of applications up to the date of announcement of the relevant applications

CHAPTER IV

EXAMINATION OF INDUSTRIAL DESIGNS Part One

Administrative examination Article 24

(1) The Directorate General shall examine applications in accordance with the provisions as meant in laws in force.

(2) The Directorate General shall notify decisions on rejection of applications to applicants in the case the said industrial designs belonging to the criteria as meant in article4 or notify consideration on the withdrawal of applications because they fail to comply with the provision as meant in article 20.

(3) Applicants or their proxies shall be given opportunity to raise objections against decisions on rejection or consideration on the withdrawal as meant in paragraph (2) not later than 30 (thirty) days as from the date of receipt of letters of rejection or notification on the withdrawal.

(4) In the case of applicants not raising the objections as meant in paragraph (3), decisions on the rejection or withdrawal by the Directorate General as meant in paragraph (1) shall be fixed.

(5) With regard to the rejection or withdrawal by the Directorate General, Applicants or their proxies can file lawsuits the Court of Commerce in accordance with the procedure stipulated in this law.

Part Two

Announcement, substantive examination, granting and rejection Article 25

(1) Applications already fulfilling the requirements as meant in Article 4 and Article 11 shall be announced by the Directorate General by means of placing them in special facilities for that purpose which can be seen easily and clearly by the public, not later than 3 (three) months as from the date of receipt.

(2) The announcement as meant in paragraph (1) shall contain: a. full names and addresses of applicants;

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c. date and numbers of receipt of applications;

d. names of countries and date of receipt of applications for the first time, in the case of applications being submitted by using priority rights;

e. titles of industrial designs; and

f. pictures or photos of industrial designs.

(3) In the case of applications being rejected or considered to be withdrawn, but they are later registered on the basis of decisions of the court, the announcement as meant in paragraph (1) and (2) shall be done by the Directorate General after receiving copies of the decisions.

(4) Upon the submission of applications, applicants can ask in writing for the postponement of the announcement.

(5) The postponement of the announcement as meant in paragraph (4) shall not exceed 12 (twelve) months as from the date of receipt or the date of priority.

Article 26

(1) Starting from the date of commencement of the announcement as meant in Article 25paragraph (1), every party can raise written objections covering substantive matters to the Directorate General by paying the costs as stipulated in this law. (2) The submission of objections as meant in paragraph (1) shall already be received

by the Directorate General not later than 3 (three) months as from the date of commencement of the announcement.

(3) The objections as meant in paragraph (2) shall be notified by the Directorate General to applicants.

(4) Applicants can convey rejoinders to the objections as meant in paragraph (2) not later than 3 (three) months as from the date of dispatch of notification by the Directorate General.

(5) In the case of objections against the applications as meant in paragraph (1), inspectors shall execute substantive examination.

(6) The Directorate General shall use objections and rebuttals submitted as material of consideration in the examination to decide whether the applications are accepted or rejected.

(7) The Directorate General shall be obliged to make decisions to approve or reject the objections as meant in paragraph (1) not later than 6 (six) months after the period of announcement as meant in paragraph (2) ends.

(8) The decision of the Directorate General as meant in paragraph (7) shall be notified in writing to applicants or their proxies not later than 30 (thirty) days as from the date of issuance of the decisions.

Article 27

(1) The inspectors as meant in Article 26 paragraph (2) shall personnel of the Directorate General in the position of functional officials, who are appointed and relieved by a decree of the Minister.

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Article 28

(1) Applicants having their applications rejected can file lawsuits to the Court of Commerce not later than 3 (three) months as from the date of dispatch of the notification as meant in Article 26 paragraph (8) in accordance with the procedure stipulated in this law.

(2) Against the applications rejected on the basis of Article 2 or Article 4, applicants can raise written objections along with their reasons to the Directorate General. (3) In the case of the Directorate General thinking that applications are not in

accordance with the provision in Article 4, applicants can file lawsuits decisions of rejection by the Directorate General to the Court of Commerce according the procedures stipulated in this law.

Article 29

(1) In the case of the absence of objections against applications up to the period of submission of objections as meant in Article 26 paragraph (2) ends, the Directorate General shall issue and grant certificates industrial designs not later than 30 (thirty) days as from the date when the period ends.

(2) The certificates of industrial designs shall come into force as from the date of receipt.

Article 30

(1) Parties that need copies of certificates of industrial designs can ask them from the Directorate General by paying the costs as stipulated in this law.

(2) Provisions on requirements and procedures for the granting of copies of industrial designs shall be further stipulated by a presidential decree.

CHAPTER V

THE TRANSFER OF RIGHTS AND LICENSES Part One

The transfer of rights Article 31

(1) Industrial designs rights can change in ownership or be transferred by: a. inheritance;

b. grants; c. testaments;

d. written agreements; or

e. other causes permitted by laws.

(2) The transfer of industrial design rights as meant in paragraph (1) shall be accompanied by documents of the transfer of the rights.

(3) All forms of the transfer of industrial design rights as meant in paragraph (1) shall be recorded in the General List of Industrial Designs at the Directorate General by paying the costs stipulated in this law.

(4) The transfer of industrial design rights not recorded in the General List of Industrial Designs shall cause no legal consequence to the third party.

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Article 32

The transfer of industrial design rights shall not eliminate rights of designers to retain their names and identities mentioned in both certificates of industrial designs, Official Gazette of industrial Designs and the General List of Industrial Designs.

Part Two Licenses Article 33

Holders of industrial design rights shall have rights to grant licenses to other parties on the basis of licensing agreement to undertake all actions as meant in Article 9, unless other wise stipulated by other agreements.

Article 34

Without reducing the provision as meant in article 33, holders of industrial design rights shall remain capable of executing themselves or granting licenses to the third party to execute the actions as meant in Article 9, unless other stipulated by other agreements.

Article 35

(1) Licensing agreements shall be recorded in the general List of Industrial Designs at the Directorate general by charging the costs as stipulated in this law.

(2) Licensing agreements not recorded in the General List of Industrial designs shall not apply to the third party.

(3) The licensing agreements as meant in paragraph (1) shall be announced in official Gazette of Industrial Designs.

Article 36

(1) The licensing agreements shall be prohibited from containing provisions which can inflic tlosses on the Indonesian economy or containing provisions, which cause unfair business competition as stipulated in laws in force.

(2) The Directorate General shall reject the recording of licensing agreements containing the provisions as meant paragraph (1).

(3) Provisions on the recording of licensing agreements shall be stipulated by a presidential decree.

CHAPTER VI

THE ANNULMENT OF REGISTARTION OF INDUSTRIAL DESIGNS

Part One

The annulment of registration on the Basis of requests from industrial

Design rights Article 37

(1) Registered industrial designs can be cancelled/nullified by the Directorate General on the basis of written requests submitted by holders of industrial design rights. (2) The annulment of industrial design rights as meant in paragraph (1) can not be

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Industrial Designs give written approval, attached to applications for the annulment of the registration.

(3) Decisions on the annulment of industrial design rights shall be notified in writing by the Directorate General to:

a. holders of industrial design rights;

b. licensees in the case of the industrial designs being already licensed in accordance with the records in the General List of Industrial Designs;

c. parties submitting the annulment by mentioning that industrial design rights already granted are declared null and void as from the date of issuance of decisions on the annulment.

(4) The decisions on the annulment of registration as meant in paragraph (1) shall be recorded in the General List of Industrial Designs and announced in Official Gazette of Industrial Designs.

Part Two

Annulment of registration on The basis of lawsuits

Article 38

(1) Lawsuits against the annulment of registration of industrial designs can be filed by interested parties with the reasons as meant in Article 2 or Article 4 to the Court of Commerce

(2) Decisions of the Court of Commerce as meant in paragraph (1) on the annulment of registration of industrial design rights shall be conveyed to the Directorate General not later than 14 (fourteen) days as from the date of declaration of the decision.

Part Three

Procedure for filing lawsuits Article 39

(1) Lawsuits against the annulment of registration of industrial designs shall be submitted to the Chairman of the Court of Commerce in domicile jurisdictions or domiciles of defendants.

(2) In the case of defendants being domiciled outside the Indonesian territory, lawsuits can be submitted to the Chairman of the Court of Commerce of Central Jakarta.

(3) Court secretaries of the Court shall register lawsuits against the annulment on the date of submission of the lawsuits and written receipts signed by the clerks with the date being the same as the date of registration of lawsuits are given to plaintiffs.

(4) Court secretaries shall convey lawsuits against the annulment to the Chairman of the Court of Commerce not later than 2 (two) days as from the date of registration of the lawsuits.

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(6) Legal proceedings for examining lawsuits against the annulment shall be executed not later than 60 (sixty) days as from the date of registration of the lawsuits against the annulment.

(7) The summon of parties shall be done by confiscators not later than 7 (seven) days after the date of registration of lawsuits against the annulment.

(8) Decisions on lawsuits the annulment shall be declared not later than 90 (ninety) days after the date of registration of the lawsuits and can be extended to another term of 30 (thirty) days at the maximum on the basis of the approval of the Chairman of the Supreme Court.

(9) The decisions on lawsuits against the annulment as meant in paragraph (8) which completely contain legal considerations becoming the basis for the decisions shall be declared in legal proceedings open for the public and can be executed first, even though a legal action against the decisions is raised.

(10) Copies of the decisions of the Court of Commerce as meant in paragraph (9) shall be conveyed by confiscators to parties not later than 14 (fourteen) days after the date of declaration of the decision on lawsuits against the annulment.

Article 40

Only appeals can be applied for against the decisions of the Court of Commerce as meant in Article 38 paragraph (2).

Article 41

(1) Applications for the appeals as meant in Article 40 shall be submitted not later than 14 (fourteen) days after the date of declaration or notification of decisions against which the appeals are applied for to relevant parties by registering them to court secretaries already announcing decisions on the lawsuits.

(2) Court secretaries shall register the applications for appeals on the date of submission of the relevant applications and written receipts signed by the court secretaries with the date being the same as the date of receipt of applications are given to applicants.

(3) Applicants of appeals shall convey appeals memos to clerks in 14 (fourteen) days as from the date of registration of applications for appeals as meant in paragraph (2).

(4) Court secretaries shall dispatch applications for appeals and appeal memories as meant in paragraph (3) to parties against which appeals are raised not later than 2 (two) days after the date of registration of applications for appeals.

(5) Parties against which appeals are raised can submit counter appeal memories to court secretaries not later than 7 (seven) days after the date of receipt of appeal memos by parties against which appeals are raised as meant in paragraph (4) and court secretaries are obliged to convey contra-appeal memories to applicants of appeals not later than 2 (two) days after the date of receipt of contra-appeal memories.

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(7) The Supreme Court shall study documents of applicants for appeals and stipulate the date of legal proceedings not later than 2 (two) days after the date of receipt of applications for appeals by the Supreme Court.

(8) Legal proceedings for examining applications for appeals shall be executed not later than 60 (sixty) days as from the date of receipt of applications for appeals by the Supreme Court.

(9) Decisions on the applications for appeals shall be declared not later than 90 (ninety) days as from the date of receipt of applications for appeals by the Supreme Court.

(10) The decisions on applications for appeals as meant in paragraph (9) which completely contain legal considerations being the basis for the decisions shall be declared in legal proceedings open for the public

(11) Secretaries of the Supreme Court shall convey copies of decisions on appeals to court secretaries of the Court of Commerce not later than 3 (three) days after the date of declaration of decisions on applications for the appeals.

(12) Bailiffs shall convey copies of decisions on the appeals as meant in paragraph (11) to applicants of appeals and parties against which appeals are raised not later than 2 (two) days after the date of receipt of decisions on appeals.

Article 42

The Directorate General shall record decisions on appeals for the annulment already securing permanent legal power in the General List of Industrial Designs and announce them in the Official Gazette of Industrial Designs.

Part Four

Consequence of annulment of registration Article 43

The annulment of registration of industrial designs shall abolish all legal consequences connected with the industrial design rights and other rights derived from the industrial designs.

Article 44

(1) In the case of the registration of industrial designs being annulled on the basis of the lawsuits as meant in Article 38, licensees shall remain rightful to execute their licenses up to the period stipulated in licensing agreements ends.

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CHAPTER VII COSTS Article 45

(1) The submission of applications, objections against applications, requests for copies of the General List of Industrial Designs, requests for priority documents of industrial designs, requests for copies of industrial design certificates, the recording of transfer of rights, recording of licensing agreements, as well as other requests stipulated in this law shall be subjected to costs whose amounts are stipulated by a government regulation.

(2) Further provisions on requirements, period and procedure for the payment of the costs as meant in paragraph (1) shall be stipulated by a presidential decree.

(3) The Directorate General with the approval of the Minister of Finance can manage itself the costs as meant in paragraphs (1) and (2) on the basis of laws in force.

CHAPTER VIII

SETTLEMENT OF DISPUTE Article 46

(1) Holders of industrial design rights or licensees can file lawsuits against whoever intentionally and without right commits the actions as meant in Article 9, in the form of :

a. Legal actions for obtaining compensations;

b. Discontinuation of all actions as meant in Article 9

(2) The legal actions as meant in paragraph (1) shall be submitted to the Court of Commerce.

Article 47

In addition to the settlement of legal actions as meant in Article 46, parties can settle the disputes through arbitration or alternative settlement of disputes.

Article 48

The procedure for filing the legal actions as stipulated in Articles 39 and 41 shall apply, mutatis mutandis, to the legal actions as stipulated in Articles 24, 28 and 46.

CHAPTER IX

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Article 49

Based on sufficient evidence, parties which have their rights injured can ask judges of the Court of Commerce to issue provisional stipulations on :

a. The prevention of entry of products connected with violations of industrial design rights;

b. The storage of evidence connected with violations of industrial design rights. Article 50

In the case of the provisional stipulations as meant in Article 41 being already executed, the Court of Commerce shall promptly notify parties subjected to actions and provide opportunity for the parties to have their information heard.

Article 51

In the case of judges of the Court of Commerce already issuing provisional stipulations, judges of the Court of Commerce examining the disputes shall decide to amend, nullify or strengthen the stipulations as meant in Article 49 not later than 30 (thirty) days as from the date of issuance of the provisional stipulations.

Article 52

In the case of the provisional stipulations of the Court of Commerce being nullified, the injured parties can demand compensations from parties asking for the provisional stipulations of the court for all losses arising from the provisional stipulations of the court.

CHAPTER X INQUIRY

Article 53

(1) In addition to inquirers being officials of the Police of the Republic of Indonesia, inquirers being civil servants within the ministry with the scope of task and responsibility covering intellectual property rights shall be granted special authority as the inquirers as meant in Law No. 8/1981 on criminal code to investigate crimes in the industrial design field.

(2) The inquirers as meant in paragraph (2) shall be authorized :

a. To examine the truth of reports or information connected with the crimes in the industrial design field;

b. To investigate parties allegedly committing crimes in the industrial design field; c. To ask information and evidence from parties in connection with crimes in the

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d. To audit the bookkeeping, recording and other documents connection with crimes in the industrial design field;

e. To undertake examination in certain places where evidence of the bookkeeping, recording and other documents is allegedly existent;

f. To confiscate evidence and/or goods resulting from violations which can be used a evidence in criminal cases in the industrial design field; and/or

g. To ask assistance of experts in the framework of the execution of tasks of inquiry into crimes in the industrial design field.

(3) The inquirers being civil servants as meant in paragraph (1) in executing their tasks shall notify the commencement of inquiry and report results of their inquiry to inquirers being official of the Police of the Republic of Indonesia.

(4) In the case of the inquiry already finishing, the investigators being civil servants as meant in paragraph (1) shall convey results of their inquiry to public prosecutors through inquirers being officials of the Police of the Republic of Indonesia by observing the provision in Article 107 of Criminal Code Law.

CHAPTER XI CRIMINAL PROVISION

Article 54

(1) Whoever intentionally and without rights commits the actions as meant in Article 9 shall be subjected to imprisonment of 4 (four) years and/or a fine of Rp. 300,000,000.00 (three hundred million rupiahs) at the maximum.

(2) Whoever intentionally violates the provisions as meant in Article 8, Article 23 or Article 32 shall be subjected to imprisonment of one year and/or a fine of Rp. 45,000,000.00 (forty five million rupiahs) at the maximum.

(3) The crimes as meant in paragraphs (1) and (2) shall be an offence that warrant complaints.

CHAPTER XII

TRANSITIONAL PROVISION Article 55

(1) Designers already announcing industrial designs in 6 (six) months before the enforcement of this law can submit applications on the basis of this law.

(2) The applications as meant in paragraph (1) shall be submitted not later than 6 (six) months as from the date of enforcement of this law.

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CONCLUSION Article 56

With the enforcement of this law, the provision in Article 17 of Law No. 5/1984 on the industrial affairs (Statute Book of 1984 No. 22, Supplement to Statute Book No. 3274) shall be declared null and void.

Article 57

This law shall come into force as from the date of promulgation.

For public cognizance, this law shall be promulgated by placing it in Statute Book of the Republic of Indonesia.

Ratified in Jakarta On December 20, 2000

THE PRESIDENT OF THE REPUBLIC OF INDONESIA sgd.

ABDURRAHMAN WAHID

Promulgated in Jakarta On December 20, 2000 THE STATE SECRETARY sgd.

DJOHAN EFFENDI

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ELUCIDATION ON LAW NO. 31/2000 CONCERNING

INDUSTRIAL DESIGNS

I. GENERAL

Indonesia as a developing country needs to promote industries by enhancing their competitiveness. One of the method adopted to enhance the competitive edge is to utilize the role of industrial designs which constitutes part of the intellectual property rights. The diversity of culture combined with efforts to take part in the trade globalization and also by means of providing legal protection for industrial designs will accelerate the development of national industries.

In connection with the trade globalization, Indonesia already ratified the agreement establishing the World Trade Organization also covering the agreement on trade related aspects of intellectual property rights (TRIPs) as already ratified by Law No. 7/1984. The ratification of the agreements supports the ratification of Paris Convention for the Protection of Industrial Property in the Hague Agreement (London Act) concerning the International Deposit of Industrial Designs.

In view of the above mentioned matters and since lega l protection of industrial designs is not yet regulated, Indonesia needs to make out an industrial design law to guarantee the protection of rights of designers and stipulate their rights and obligations as well as to prevent parties having no rights from misusing rights of the industrial designs.

Besides fulfilling the commitment to the agreement on TRIPs, the regulation of industrial designs aims at providing a the basis for the effective protection from various forms of duplication, piracy or imitation of industrial designs already known widely. The principle of the regulation is the recognition of ownership of intellectual property which gives aesthetically impressions and can be produced repeatedly and can turn out goods in two or three dimensions.

Legal protection granted to industrial design rights aims at stimulating creative activities of designers to continue creating new designs. In the framework of realizing a climate capable of supporting the spirit of creation of new designs and at the same time providing the legal protection, provisions on industrial designs are formulated in this law. The protection of industrial design rights is granted by the state of the Republic of Indonesia if they are asked by designers or statutory bodies entitled to industrial design rights through the procedure for registration.

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property rights especially the difference between patent rights, patent and industrial designs.

Creators (as subjects of copy rights) are somebody or several people because of their inspirations producing creations in the scientific, artistic and literary field. Inventors (as subjects or patents) are somebody independently or several people collectively executing activities to solve certain problems in the technology field in the form of a process or production process. Designers are somebody or several people producing industrial designs, in creations of forms, configurations, or compositions (compositions of lines or colors, or lines and colors), or combination thereof which are in the form of three dimensions or two dimensions, giving esthetical impressions and which can be manifested in three dimension or two dimension patterns and which can be used for producing certain industrial products, goods or commodities and handicrafts.

In the registration process of industrial designs, like patents, inspectors conduct examination, while the registration of patent rights does not apply an examination system.

In examining applications for rights to industrial designs, the principle of novelty and the submission of first registration are adopted. The newness principle in these industrial designs is distinguished from the principle of originality in force in copyrights. The definition of "new" or "newness" is determined by the registration submitted for the first time and upon the registration, no other parties can prove that the registration is not new or already existed in the previous disclosure/publications in writing or non-writing. "Original" means something directly coming from the source of origin of people making or creating or something directly declassed by people that can prove their original source.

Subsequently, the first registration principle means that people first submitting applications for industrial design rights will obtain legal protection, instead of those designing for the first time. Furthermore, in the interest of publication or announcement of registrations of applications for industrial design rights, the classification of applications in accordance with laws in force is also applied in the examination.

In order to enable the registration of industrial design rights, the government currently appoints the Ministry of Justice and Human Rights in this case the Directorate General of Intellectual Property Rights to provide service in the field of intellectual property rights. In view of the fact that the scope of tasks and responsibility is quite broad, the Directorate General in charge of intellectual property rights may develop into another which is independent within the government in the future, including being independent in financial management.

(20)

Article 1 - Sufficiently clear Article 2

Paragraph (1) - Sufficiently clear Paragraph (2)

"Disclosures" mean disclosures through print or electronic media, including participation in exhibitions.

Paragraph (3) - Sufficiently clear Article 3

Letter a

"Formal exhibitions" are exhibitions organized by the government, while "exhibitions recognized as formal exhibitions" are exhibitions held by the public, but they are recognized by or secure approval from the government.

Letter b - Sufficiently clear Article 4 - Sufficiently clear

Article 5

"General List of Industrial Designs" is a means of accumulation of registration done in the industrial design field containing information on names of right holders, kinds of designs, date of receipt of applications, date of execution of registration, and other kind of information on the transfer of rights (in the case of the transfer of rights being already executed).

"Official Gazette of Industrial Designs" is a means of notification to the public in the form of official sheets issued periodically by the Directorate General which contain matters required by this law. Article 6

Paragraphs (1) and (2) - Sufficiently clear Article 7

Paragraph (1)

"Official relations" mean personnel relations between civil servants and their agencies.

Paragraph (2)

(21)

This provision does not reduce rights of designers to claim their rights in the case of the industrial designs being used for matters beyond the official relations.

Paragraph (3)

"Working relations" mean working relations within the private sector, or relations arising from the ordering of industrial designs by private institutions, or individual relations with designers. Article 8

The listing of names of designers in the General List of Industrial Design and Official Gazette of Industrial Designs is common in the field of intellectual property rights. The right to mention names of designers is known as a moral right.

Article 9

Paragraph (1)

Exclusive rights are rights only granted to holders of industrial design rights to exercise themselves or give licenses to other parties for a specified period. Therefore, other parties are prohibited form exercising the industrial design rights without the approval of the holders.

The granting of rights to other parties can be done through inheritance, grants, testaments, agreements or other causes.

The use means the use of industrial design in the only interests of research and education, including test of research and development. However, the use can not implicit losses on reasonable interests of designers, while "reasonable interests" are the use in the interests of education and research generally excluding the use of industrial design rights as meant in paragraph (1). In the educational field, for example, reasonable interests of designers will be injured if the industrial designs are used for the whole educational institutions located in the said city. Criteria for interests are not solely measured on the basis of commercial elements but also the quantity of the use.

Paragraph (1) up to Paragraph (3) - Sufficiently clear Paragraph (4)

Letter a

If physical examples of industrial designs to which the registration is applied for are very big, it is sufficient to give pictures or photos of the designs taken from various angle.

(22)

"Sufficient evidence" means legitimate, true and adequate evidence showing that applicants are rightful to submit applications.

"Unless otherwise proven" means a provision manifesting the goodwill principle which is adopted in the Indonesian legal system.

Article 13

"One industrial design" is an independent unit of industrial design. Nonetheless, a set of cups and teapot, for examples, is also one industrial design, while "class" means the class as stipulated in the International Classifications of industrial designs as meant in the Locarno Agreement. Indonesia has not yet been a member of the agreement, but in practice Indonesia uses the agreement as the main reference of examination.

Article 14

Principally, applications can be submitted by applicants themselves. In the case of applicants being domiciled abroad, applications must be submitted through proxies to felicitate the relevant applicants, among others, because the documents of applications wholly use the Indonesian language. In addition, requirements for legal domiciles of applications will be settled by using proxies (being Indonesian parties).

Articles 15 and 16 - Sufficiently clear Article 17

Letter a

"Complete copies" means the whole copies of documents needed in the submission of applications for the registration on the basis of laws of the relevant countries.

Letter b

"Legitimate copies" means copies legally according to the original copies.

Article 18

This requirement is the minimal requirement for facilitating applicants to obtain the date of receipt as already defined before. The date determines the moment the calculation of the protection period of the industrial designs starts to be effective.

Article 19

(23)

The deadline of 3 (three) months granted to applicants to complete requirements not yet fulfilled starts from the date of dispatch of the shortcomings, instead of the date of receipt of letters of notifications by applicants.

Evidence of dispatch is proven by postal seal, documents of dispatch or other documents of dispatch.

The whole costs already paid to the Directorate General are not reimbursable whether the applications are accepted, rejected or withdrawn.

Article 21

"Not yet securing decisions" means that the applications are not yet registered in the General List of Industrial Designs.

Articles 22 and 23 - Sufficiently clear Article 24

Paragraph (1)

"Examination" means administrative examination (formality check) connected with the completeness of administrative requirements for the applications as meant in Article 11.

In addition, for the purpose of announcement of applications, the Directorate General classifies and examine matters deemed unclear or improper if the applications are announced.

This provision is intended to provide opportunity for parties submitting applications to improve the industrial designs, such as to eliminate parts considered to contravene decency.

Paragraph (1)

"Being announced" means to be informed to the public through the Official Gazette of Industrial Gazette. The announcement can also be done through other media mass later.

"Decisions of the Court" means decisions of the Court already having permanent legal power.

(24)

This provision aims at providing opportunity for applicants considering the cancellation necessary for their interests.

Paragraph (5)

"The priority date" is the date when applications for registrations have their priority rights requested for the first time in countries of origin.

Article 26

Paragraph (1) up to Paragraph (4) - Sufficiently clear Paragraph (5)

"Substantive examination" means the examination of applications on the basis of the provisions in Articles 2 and 4 to ascertain the newness aspect applied, which can be done by using the existing references. The substantive examination is done by "inspectors" being experts specially educated and appointed to execute the task. Like inspectors in other fields of intellectual property rights, inspectors of industrial designs are given the status of functional officials because their expertise and the scope of their responsibility are characteristically special. The status needs to be given in the framework of the development as incentives for inspectors.

Paragraph (6) up to Paragraph (8) - Sufficiently clear Articles 27 and 28 - Sufficiently clear

Article 29

Paragraph (1)

"Copies" mean copies containing information on the industrial designs, among others, names of designers, holders of rights and/or proxies of the industrial design rights.

Paragraph (1) Letter e

"Other causes" include decisions of the court on bankruptcy Paragraph (2) up to Paragraph (5) - Sufficiently clear

Article 32 up to Article 34 - Sufficiently clear Article 35

(25)

What must be registered are licensing agreements themselves in forms agreed by parties, including contents of the licensing agreements, as meant in the provisions of this law.

Paragraph (1)

This provision aims at protecting interests of the state from certain consequences of the licensing agreements.

This provision aims at protecting interests of licensees already paying royalties to licensers.

Paragraphs (3) and (4) - Sufficiently clear Article 38 - Sufficiently clear

Article 39

Paragraphs (1) and (2) - Sufficiently clear Paragraphs (3)

Unless otherwise stipulated, "court secretaries" as meant in this law are secretaries of the State Court/the Court of Commerce. Paragraph (4) up to Paragraph (6) - Sufficiently clear

Paragraph (7)

"Bailiffs" are bailiffs at the State Court/the Court of Commerce Paragraph (8) up to Paragraph (10) - Sufficiently clear

Article 40 up to Article 43 - Sufficiently clear Article 44

Paragraphs (1) - Sufficiently clear Paragraphs (2)

Another party really entitled to the relevant industrial designs can be existent upon the annulment. Such a condition can happen if there are two holders of industrial designs, but one of them is legally declared as the rightful party. In line with the clarity stipulated in paragraph (1), the following payment of royalties must be done by licensees of industrial designs to the really rightful holders of industrial designs.

(26)

"Alternative settlement of disputes" are negotiations, mediation, conciliation, and other methods chosen by parties in accordance with laws in force.

Letter a

This provision aims at preventing parties whose right is violated from suffering bigger losses so that judges of the Court of Commerce are authorized to issue provisional stipulations to prevent continuing violation and the entry of goods allegedly violating industrial design rights to the trading lane, including their importation.

Letter b

This provision aims at preventing violations from eliminating evidence.

Article 50 up to Article 47 - Sufficiently clear