EVEN THOUGH THE SELLER DID NOT KNOW THAT THE GOODS HE SOLD WERE COUNTERFEIT, THE ACT OF SELLING FALLS UNDER THE CATEGORY OF THE CRIME OF TRAFFICKING IN GOODS THAT ARE THE RESULT OF INFRINGEMENT OF ANOTHER PARTY’S REGISTERED MARK

The defendant sold 10 cartons of mosquito lotion to Witness ASL. The anti-mosquito lotion product is similar to the product of PT HI’s trademark which has been registered with the Ministry of Law and Human Rights of the Republic of Indonesia, but the anti-mosquito lotion product sold by the Defendant was not produced by PT HI even though it has overall similarities. The Defendant argued that the anti-mosquito lotion came from a barter for underpayment from a buyer and the Defendant did not know that the anti-mosquito lotion was counterfeit.

The District Court found the Defendant legally and convincingly proven to have violated Article 94 paragraph (1) of Law No. 15/2001 on Trademarks. However, the Defendant was only sentenced to imprisonment for 4 months, and the Public Prosecutor appealed the decision, but the Court of Appeal did not increase the criminal sentence against the Defendant. The public prosecutor also filed a cassation.

The Supreme Court at the cassation level ruled that because the anti-mosquito lotion was obtained as a result of bartering for the shortfall in payment that the Defendant should have received, it must be stated that the Defendant did not know that the goods he sold were counterfeit. However, the Defendant was still proven to have traded goods that were the result of infringement of another party’s registered mark. Still considering the Defendant’s ignorance of the falsity of the anti-mosquito lotion, the Supreme Court did not increase the criminal sentence, although the Defendant was still found guilty.  

–>Supreme Court Decision Number 503 K/Pid.Sus/2016, Dated May 4, 2016.

Source:

https://putusan3.mahkamahagung.go.id/direktori/putusan/19245ff4967666b819d3c637d3b96131.html

Salam Pancasila,

Fredrik J Pinakunary