Criminal Responsibility in IPR Infringements Can Be Broadened 

Protections over IPR (Intellectual Property Rights) are tightened. Liability will be imposed not only against plaintiffs in IPR but also against other parties that are directly or indirectly involved.

The role of the USA in alteration of universal IPR protection can not be denied as they are the one that have the biggest interest over IPR protection.

USA role in fighting for IPR protection including the consistency of law enforcement implementation is reflected from the regulations in IPR matter issued in Uruguay Round as stipulated in the TRIPS (Trade Related Intellectual Property Right’s) agreement.

The agreements in TRIPS that become the place to stand on in arranging regulations in IPR matter is a result from negotiation with the Uruguay Round signatory countries and the USA’s merits.

Since the agreements from the participant countries were involving agreement in international trade of goods, TRIPS broadened the protection to include services in IPR.

With the existence of IPR protection surely it is involved with the circulating of fake products, pirating, and illegal use of services over registered trademark. Whereas registered trademarks, especially for well known trademarks such as Microsoft, McDonalds, Citibank, Coca Cola, Esson, Levi’s Jeans and Starbucks are protected by law.

With the existence of law protections in IPR, other aspects that are connected with the IPR itself can not be disregarded. IPR protections are very needed considering the big role and function of IPR that has economic and strategic values for every country worldwide. Infringements of IPR can cause a lot of implications, among other, financial loss of the owner and the IPR holder it self, and financial loss suffered by the country in the form of lost economic potential and also disturbance of politics and international trade relationship all together.

That is the reason why USA has been very interested in maintaining and defending the interest of trademarks owners originating from its country, because that economic interest is quite immense. License (franchise) model brings advantages for USA through collected tax. It is unquestioned , therefore, that USA always keep an eye over countries that commits pirating over registered trademarks owned by USA’s citizens.

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Many regulations have been used as a “weapon” by USA to “shoot” against the countries that commit pirating. For the example is the certain regulation in Omnibus Act in Article 301 that always has been used to punish the disobedient countries that always breaking the IPR law.

As the supervisor of the implementation of Omnibus Act is USTR (United States Trade Representative). USTR will punish countries that violate the IPR regulations by giving levels of violation such as, priority foreign watch list, priority watch list, and watch list.

Consequence that will be received by the countries that labeled by the level of violation will be imposed of economic sanctions by the USA such as reduce the export allotment until embargo of economy.

China with its economic growth above 9% is very concern with the economy sanctions done by USA. That is the reason why, the problem in IPR law enforcement in China experienced a progress. Since China becoming the member of the WTO (World Trade Organization), courts in China have made lots of progressive –if it can not be called revolutionary– surprises in enforcing the IPR regulations.

An example of Intermediate People’s Court verdict No.2 in Shanghai regarding the Starbucks trademark is China Shanghai Xingbake Coffee Co. Ltd., that has registered trademark, design and logo of Starbucks that owned by an American which translated into Chinese “Xingbake” had been punished to pay compensation of 500.000 Yuan (US$ 62,500.00).

Similar with the case above is regarding the criminal responsibilities of IPR infringements. The criminal responsibilities model of counterfeit, pirating and plagiarism have broadened. It is not only covering the directly plaintiff, but also, persons that provide the facilities.

At the beginning of the principle of criminal law that related to responsibilities over IPR infringements only treated to those who conduct the crimes, who orders to do the crime or who participate to do the crime without involving people –not knowing anything– whose provides the facilities.

The Intermediate People’s Court No. 2 had sentenced the manager of the shopping centre that sold fake trademark products of Louis Vuitton SA; Prada; Burberry; Gucci and Haosen, to hold responsibilities by paying compensation of 100.000 Yuan (US$ 12.391), even though the manager had not knowing the activity of the shops.

The reason to impose the manager was the manager should have known and joins stopping fake products that has been doing by the shops. The broadened criminal responsibilities in IPR may be imitated by other countries in enforcing the IPR law.

Indonesia as a country that participates in the international agreements surely can not escaped from such models. Even so there is still be questioned whether the broadened criminal responsibilities in IPR can be imposed in Indonesia? Considering for all these time in building rent agreement, mall in shopping centre, clauses such as the owner of the building will not be held responsible over tenant who breaking the law, could abolish its responsibilities. Therefore what trends should be followed by our officers who uphold the law?


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