From the islands of Indonesia, the IP Komodo prowls South East Asia and beyond looking for succulent morsels of intellectual property news with the aim of to raising awareness of South East Asia's IP issues to help people understand this diverse region's IP complexities.
Eventually the allegations of Trump’s conflict of interests
had to reach SE Asia! Many newspapers have been hard at work uncovering the
Trump organisation's business networks around the world.
Businesses owned by the Trump family hired a Philippines law
firm owned by a Philippines government officer to handle their IP work. Elpidio C
Jamora Jr is a name partner at Manila law firm Carag, Jamora, Somera &
Villareal. The firm files trademarks for the Trump Organization and Ivanka Trump’s
personal brand. Jamora is also chairman of the largest state-owned construction
company the Philippine National Construction Corporation (PNCC) and was sworn
in by the President of the Philippines.
Meanwhile Trump plans to open a tower in Manila, which is a
project run by Jose EB Antonio, a Filipino developer who was also named by the
Philippines government as special trade envoy to Washington in 2016.
Indonesia has taken its first steps towards a Customs IP
border protection system.The Indonesian Government has issued Regulation No. 20 of
2017 on Controls of Import and Export Goods Constituting or Deriving from
Intellectual Property Rights Infringement (“Regulation”). The Government
Regulations was stipulated on 30 May 2017, enacted on 2 June 2017 and takes
effect from 2 August 2017. It implements provisions in Law No. 17 of 2006 on
Amendments to Law No. 10 of 1995 on Customs.
The Regulation provides for an IPR recordal system for
trademarks and copyrights only. Recordals are valid for a year, but renewable. Applications
can only be made by Rights Holders with a business entity domiciled in
Indonesia. Applications must attach evidence of ownership, product
authentication, distribution routes and marketing information of products.
Customs will approve or reject an application within 30 days. Specific
procedures will be set out in a government regulation from the Ministry of
Preliminary Restraint of goods occurs first for trademarks
and copyrights that have been recorded. Customs can detain suspected infringing
goods as follows:
will send a Notification of Restraint to Right Holders
holders must confirm the notice within 2 days; and
holders must then file a Suspension Request to Commercial Court within 4
days of their confirmation of the notice.
For other IPR infringements like patents and industrial
designs, the Customs have no power of preliminary Restraint and Right Holders
have to file a Suspension Request to Commercial Court.
Next step is a Suspension Request to Court. Right Holders
must do three things
operational costs security to Customs of Rp100,000,000 (about USD 7,500)
in the form of bank or insurance guarantee.
sufficient evidence of the IPR ownership and infringement
to Court for physical examination over the goods for which Suspension is
The Regulation states that the Commercial Court shall
approve or reject the Suspension Request within 2 business days and notify
Customs 1 day later.There will be
further Regulations on the procedure for the Suspension Request.
Execution of Suspension Order is the third step. If a
Suspension Order is issued, Customs will notify the Right Holders, the importer
or exporter of the goods and the DGIP. Within 2 days of the court decision,
Right Holders shall submit an application to Customs to set a schedule for the
physical examination of the suspended goods. Customs will detain the goods for
up to 10 days from the date of the receipt of the Suspension Order. Rights
holder may apply to renew one time for a maximum 10 days by providing
additional operational costs security. Under certain circumstances, for example
where the detained goods have short shelf life, the importer/exporter or owner
of the goods may apply to Court for a termination of the Suspension Order by
Once the Suspension Order expires, the detained goods can be
dealt with as follows:
by Customs in accordance with their procedures
to investigators/court pursuant to a legal action;
over to the Court’s bailiff in the event the Right Holder files an action
and/or application for security for costs over the suspended goods; or
way of private settlement of disputes
The security deposit provided to Customs may be used to
cover all operational costs such as transport and storage costs. Any shortfall
will be invoiced to the rights holder, and any excess returned. The procedures
will be governed by another Ministry of Finance Regulation.
There are several exceptions. The Suspension provisions do
not apply to transhipment cases. All Customs will do in these cases is notify
the Customs of the next country of destination. There will be further
Regulations by the Ministry of Finance to deal with commercial purposes of
goods brought by passengers, border crossers, or consignment sent by postal or
courier services. There are also Customs offences in other criminal laws which
may take precedence, e.g. smuggling.
The Regulation is a step in the right direction and sets out
procedures for Suspension Requests. However a lot of questions remain and
additional rules are required before any recordals or seizures can be made. For
now IP holders need to await further news on the additional regulations, which
are being drafted now by the Ministry of Finance and more information on how
the present ones will be interpreted.
The Philippines is proposing to amend rules on disputes
heard at IPOPHL's Bureau of Legal Affairs (BLA). The BLA hears mainly oppositions
and revocations, but can also hear other kinds of IP disputes from infringement to revocation.
The goal in the changes is increased
efficiency. Mandatory ADR is introduced to resolve some cases earlier. Motion
timeframes will be reduced to reduce delays. Decisions no longer need to be reviewed by the director
and but appeals have been widened.
The BLA's system is already relatively efficient, more so than the courts which can take years to hear cases, but these improvements should help further.
Changes are proposed to the Singaporean
customs regime. The aim is to increase the country’s attractiveness as a
transhipment hub. Singapore is already the largest transhipment port in the
world. But industry is worrying that the amendments leave enforcement gaps and
increase the volumes of counterfeit and other illicit goods passing through
A public consultation is under way. One
change relates to the submission of manifest data which must be provided within
24 hours of arriving and 48 hours of exiting Singapore. Normally this
must contain particulars such as the quantities, brands and description of
goods. The amendments allow for exemptions for large swathes of shippers.
The European Chamber of Commerce
opposes this - “Singapore’s free trade zone (FTZ) [is] vulnerable to abuse as it weakens the country’s
governance of them”. Indeed the Illicit Trade Environment Index cites
Singapore’s 7 FTZs as a serious risk over the trade in illicit including fake
goods. The Economist Intelligence Unit identified
Singapore as a problem due to a lack of vigilance over its FTZs. Basically
they said that Singapore the other way while large quantities of illicit and counterfeit
goods pass through its port destined across the world. Singapore earns income
from every container that passes through it, so looking the other way reaps the
country a lot of money for the suspected volumes of illicit goods including fakes,
travelling across the globe which are transhipped through Singapore.
Singapore still does not allow for
customs recordals but requires rights owners to initiate civil proceedings to
obtain civil court orders to seize fake imports, at great cost. But for transhipped
goods there is virtually no policing at all. Add to that the use of Indonesia’s
nearby FTZ in Battam for export processing and long time experts in the region
quietly talk of transhipment of illicit goods being Singapore’s dirty little
its bid to rein in tax revenue from foreign online businesses such as the social media giants,
the Indonesian tax authority issued Circular Letter No. SE-04/PJ/2017 on the
Determination of Permanent Establishments for Foreign Tax Subjects Which Are
Providers of Applications and/or Content Services Through the Internet
(“Circular Letter 4/2017”).
circular is addressed to Over-the-Top Services (application or content
services through the internet). Under
the circular, foreign Over-the-Top Services that come within the meaning of
permanent estalishment under the circular will be subject to Indonesian tax. Permanent establishment within Indonesia
includes the following whether owned, leased or used by Foreign OTT
Providers for the operation of their businesses or activities:
Place for management activities; b.
Branch office; c.
Representative office; d.
Office buildings; e.
Garage or workshop; f.
physical space for promotional and sales activities; h.
Computers, including servers and data centers; i.
Electronic apparatus (i.e. devices which contain computer programs that may
perform activities or which may respond based on automatic inputs); and j. Other automatic devices.
are also considered as permanent establishments if it provides any
form of services for period of 60 days or more within any given 12 month
are still several aspects of the circular that requires clarification, namely:
businesses that does not have any physical assets or activiy in Indonesia
may not be caught by the first definition of permanent establishment. 2. As
for the meaning of “60 days or more”, it is not clear if this is computed
in terms of accumulative hours of service on a 24-hour day.
is hoped that the Government will help to clarify this for foreign online
businesses that deliver Over-the-Top services without the need for any
permanent establishment. As it is is the rules seem to be wide enough to catch anyone trying to establish an operation within a global digital business.
Cambodia's Ministry of Commerce will meet other ministries
later this month to review progress on the country’s first consumer protection
law and will formulate a plan to complete the draft legislation, a ministry
official said recently.
This long-awaited legislation aims to level the playing
field for businesses and protect consumers by reducing unethical and illegal
retail and promotional practices. Its enactment will help empower authorities
to crack down on fake or falsely advertised products, as well as food and
medicinal products that pose a risk to the health of consumers. The law will
also allow consumers affected by these products to seek recourse against their
The Ministry of Commerce received financial and technical
assistance from the ASian Development Bank to work on the draft law. Legal
experts from New Zealand sent by the ADB worked with the Ministry to draft the
law based on consumer protection laws in New Zealand and some ASEAN countries
that have similar economic conditions to Cambodia.
Whilst not specifically an IP law, there will be a number of
provision is relevant to IP holders to protect against unfair competition.