The Minister of Finance has issued Regulation No. 40/PMK.04/2018 regarding Customs Recordation, Preventive Measure, Guarantee, Suspension, Monitoring and Evaluation on import and export control of Goods suspected of infringing Intellectual Property Rights (“MFR No. 40/2018“). MFR No. 40/2018 is the implementing regulation of Government Regulation No. 20 of 2017 on Import and Export control for Goods suspected of infringing Intellectual Property Rights (“GR No. 20/2017“).
MFR No. 40/2018, which comes into force this month, contains specific provisions on 1) the recordation of intellectual property at the Directorate General of Customs and Excise (“Customs Office“), 2) the preventive measure, 3) the guarantee, and 4) the customs suspension order.
Below are the key points of MFR No. 40/2018:
The recordation application comprises of two phases: (i) formality examination and (ii) substantive examination. The Customs Office ought to issue a letter of approval or refusal within 30 (thirty) days after the reception of the recordation application. An approved recordation will be valid for 1 (one) year and can be renewal.
Two important requirements to note: the applicant must (i) be domiciled in Indonesia and (ii) appoint an examiner.
To simplify the process of customs recordation, the Customs Office has set up an electronic filing system, called “CEISA” (https://customer.beacukai.go.id/).
After being notified, If the right holder intends to file a request for a customs suspension, the right holder musts undertake the steps below within the following 4 (four) business days:
Based on the result of the above actions, the Customs Office would then decide to accept or not the Guarantee. If accepted, the Customs Office will issue a Guarantee receipt to the right holder.
Please note that upon the request of the importer/exporter, the Customs Office may claim the Guarantee to the issuing bank for the following purposes (i) to pay the operational cost for examination and suspension of Infringing goods or (ii) to pay any insufficient payment of the operational cost generated by the right holder. Further, the issuing bank will disburse the Guarantee within 5 (five) working days upon the receipt of claim made by the Customs Office.
In the event that the Commercial Court issues the suspension order, the Customs Office should enforce such Suspension Order within 10 (ten) working days as of the receipt of the Suspension Order, which can be extended for another 10 (ten) working days.
To enforce the Suspension Order, the Customs Officers will (i) send the Suspension Order to the exporter, importer or the owner of goods; to the right holder of the recorded goods and to the Directorate General of Intellectual Property, (ii) conduct physical examinations upon suspected counterfeit goods according to the specified schedule as proposed by the right holder of the recorded goods.
MFR No. 40/2018 also entitles the right holder of the recorded goods to appoint an examiner to attend and examine the suspected counterfeit goods during the physical examinations of the Customs Office.
AHP Client Alert is a publication of Assegaf Hamzah & Partners. It brings an overview of selected Indonesian laws and regulations to the attention of clients but is not intended to be viewed or relied upon as legal advice. Clients should seek advice of qualified Indonesian legal practitioners with respect to the precise effect of the laws and regulations referred to in AHP Client Alert. Whilst care has been taken in the preparation of AHP Client Alert, no warranty is given as to the accuracy of the information it contains and no liability is accepted for any statement, opinion, error or omission.