The thesis aims to investigate how Indonesia should approach the issue of parallel importation. The current position of Indonesian intellectual property laws on the issue is uncertain. Indonesian trade mark law is silent on the issue. Although Indonesian copyright law and patent law contain provisions on the practice, some uncertainties remain. It is therefore necessary to review the current position and recommend appropriate amendments. To achieve the research aim, library research and field research have been carried out and a comparative analysis of the position in Hong Kong, Taiwan, Singapore and Malaysia has been undertaken.
Although they have similar positions on the parallel importation of trade-marked goods, Hong Kong, Taiwan, Singapore and Malaysia have differing perspectives on the parallel importation of copyright goods and patented goods. Their trade mark laws allow the practice. They adopt the international exhaustion principle which means that the first sale of trade-marked goods anywhere in the world exhausts the right to prevent the parallel importation of the goods into these countries. The principle applies in all situations except when a domestic trade mark owner is independent of a foreign trade mark owner from which parallel imports originate. However, in relation to the parallel importation of copyright goods, the position in Hong Kong and Taiwan is different from that in Singapore and Malaysia. The former two countries prohibit the practice whereas the latter two allow it. Unlike Hong Kong and Taiwan, Singapore and Malaysia adopt the international exhaustion principle. Also, in relation to the parallel importation of patented goods, their views differ. Hong Kong prohibits the practice, Taiwan allows it on a case-by- case basis whereas Singapore and Malaysia apply the international exhaustion principle.
Complex factors, including internal and external ones, especially pressure from the United States, underlie their position. United States' pressure can be even more influential than other factors. These four countries similarly allow the parallel importation of trade-marked goods in order to promote free competition and protect the consumer interest. According to them, a trade mark functions primarily as a badge of origin. Additionally, their policy on the parallel importation of trade-marked goods does not attract the attention of the United States. In respect of the parallel importation of copyright and patented goods, pressure from the United States contributes to the difference between the position in Hong Kong and Taiwan and that in Singapore and Malaysia. The United States has pressured Hong Kong and Taiwan to prohibit the parallel importation of copyright goods. In relation to patents, the United States has also influenced Hong Kong to ban parallel importation and has pressured Taiwan not to apply the international exhaustion principle.
The thesis recommends that, in relation to trade marks, Indonesia should follow the general trend in these four net importers of intellectual property and should therefore allow the parallel importation of trade-marked goods. Indonesia should adopt the international exhaustion principle. There is no reason for Indonesia to prohibit the practice. The flow of trade-marked parallel imports can promote competition and reduce prices. Additionally, there is no anticipated pressure from the United States.
Ideally, as a net importer of intellectual property products, Indonesia should also allow the parallel importation of copyright and patented goods. However, the situation in Indonesia resembles that in Hong Kong and Taiwan in the sense that, while internal factors play an important part, owing to their economic dependence on the United States, they must consider United States' pressure in determining their final position.
In relation to copyright, Indonesia should maintain its prohibition on parallel importation. This is because of anticipated pressure from the United States. Also, the policy can help to combat rampant piracy in Indonesia. However, Indonesia should adopt the national exhaustion principle with the effect that a copyright owner can only prevent parallel imports first sold outside Indonesia. In addition, Indonesian copyright law should provide an innocent parallel importer with a defence against an infringement proceeding.
Indonesia's policy on the parallel importation of patented goods has become an object of United States' pressure. Since Indonesia is economically dependent on the United States, in order to avoid economic sanctions, Indonesia should not disregard the pressure. Therefore, the thesis argues that Indonesia should maintain its prohibition on the parallel importation of patented goods. However, Indonesia should protect an innocent parallel importer from an infringement proceeding. It should also exempt the parallel importation of pharmaceutical products from the prohibition. Indonesian patent law should provide that the first sale of pharmaceutical products anywhere in the world exhausts the right to prevent their parallel importation into Indonesia. In this case, there are justifiable reasons for rejecting pressure from the United States. The policy is necessary to provide life-saving drugs and is supported by the Agreement on Trade- Related Aspects of Intellectual Property Rights in conjunction with the Doha Declaration.