As a member of WTO (World Trade Organization) Indonesia has signed and bound it selves that we will be opened for the free trade in 2004. As the consequences, now a problem has arisen, which is does Indonesia ready for the free trade? This is a complicated question and the answer is very time consuming. Shortly, if we look at the regulations needed for free trade we may say that Indonesian government (legislative) has tried at their best efforts to amend and enact related regulations and laws needed that is irresistible in order to keep it updated of the latest in each field. For example Indonesian People Representatives Council just passed Bankruptcy Law, which is an adoption of the United States Bankruptcy Law; Antitrust and Unfair Competition Act; Investment Law; etc. Besides that there are many regulations and laws that are still under drafting process, i.e. Broadcasting Law, E-Commerce Law (Internet Law); etc.
As one of the developing countries, Indonesia opens him selves wide open to the new technologies since we do not have “brake” tool then in the traffic there always be accidents with the others’ rights. In other words, we admit that there are many domain names cases happen in our country, because as we have stated previously that until today Indonesia still does not have any domain names (E-Commerce Law) Law yet. There are many domain names cases those are actually has happened in our country, but they are not written in the media or come to the public because the victims alarmed that we still do not have the law or regulation that can be used to bring this case to the court against the cybersquatters.
The first and only case that was brought to the Indonesian first court was the case of ‘mustika_ratu.com’ 2001. This case is well exposed by the medias at that time and drawn the attention of the practitioners, professional, experts, educational, and the owners of the famous trademarks and/or names whose their trademarks and/or names are hijacked by the cybersquatters because this was the first and only domain name case in Indonesia and they also took this case as a lesson in determining what they should do against the cybersquatters that threatening to the business.
Learning this situation, then PT. Mustika Ratu decided to report the case to the Police and filed the said case as a criminal case. As we have stated previously that since Indonesia still does not have any laws or regulations governing this domain name, but in the other hand PT. Mustika Ratu has to bring a legal bases on their claim, therefore PT. Mustika Ratu had decided to use ‘unfair competition’ that is provided under article 382 bis of the Indonesian Penal Code as their legal basis to file a criminal charges against the accused.
“Any person who, in order to establish, to retain or to expand the sale of his trade or business or those of the trade or business of another, commits a fraudulent act of misleading the public or a certain person, shall, if there from some loss for his competitors or competitors of the other person may arise, being guilty of unfair competition, be punished by a maximum imprisonment of one year and four months or a maximum fine of nine hundred rupiahs”.
Unlike the common law countries, we (Indonesia) do not have a ‘precedent’ principle. However, it must be admitted that in the practice this decision has weaken the trademark owner’s (infringed) desires to enter the lawsuit against the cybersquatters (infringer). The decision of this case was against the common decision in other countries where usually the Court decides the case in favor of the trademark owner. We understood that in other countries this case usually entered as a civil case, not a criminal case. However, in our opinion we believe that there are two (2) reasons why PT. Mustika Ratu reported and filed this case as a criminal case.
As the consequences of ‘mustika_ratu.com’ decision, many of the trademark owners whose trademarks have been registered by cybersquatters have not brought a lawsuit against the said cybersquatters yet. The trademark owners maybe have an opinion that if they enter the lawsuit at this moment then they predict that the decision for their cases will not be different with ‘mustika_ratu’ case because it can be said that the unfair competition that is provided in the article 382 bis of the Penal Code is only the ‘lex generalist’. In the other hand the ‘lex specialist’, which is e-commerce or internet law, is not yet been amended.
Many of the trademark owners, whose domain names are hijacked by the cybersquatters, will be waiting for the realization of the said ‘lex specialist’ to be used as their legal base in order to win the case and this only with a notation where the said ‘lex specialist’ must be said specifically in its article that it (‘lex specialist’) can be used as a legal basis for anti-cybersquatting cases those happened before the commencing date of the said ‘lex specialist’. If the future ‘lex specialist’ on the contrary does not specifically specify it then as the consequences the said trademark owners cannot use the said ‘lex specialist’ as their legal basis to enter a lawsuit against the cybersquatters.
As member of the practitioners we hope that the realization of this law can be amended soon. We have heard that the Indonesian legislative and educational bodies recently have conducted meeting in order to come into a draft to regulate of the said field. Therefore we trust this matter to the respected Indonesian Legislative Board Members to pass and enact the relevant laws or regulations in the said field as soon as possible.