Counterfeit Medicine Cases in Indonesia as Trademark Infringement Cases: Analyzing 2011–2016 Regulations and Court Decisions on Illegal/Counterfeit Medicine

According to the International Pharmaceutical Manufacturers Group, in 2011, 11% of medicines marketed in Indonesia were counterfeit, creating a loss of 7.6 trillion rupiahs. No universal definition exists for counterfeit medicine, raising the debate on whether counterfeit medicine signifies trademark infringement or public health issue. Indisputably, counterfeit medicine is a threat to public health as a major cause of mortality and loss of public confidence in medicine. Additionally, counterfeit medicine causes unquantifiable damage to the trademarks and reputation of pharmaceutical industries. In Indonesia, legal instruments can be used to combat counterfeiting medicine are as follows: Health Law, Consumer Protection Law, the Criminal Code, and Trademark Law. This article evaluates the strengths and weaknesses of the regulations used to combat counterfeit medicine by analyzing 100 court decisions on illegal/counterfeit medicine in Indonesia during 2011–2016, the regulations applied and their arguments, and the criminal sanctions imposed. This article concludes that, in Indonesia, cases on counterfeit medicine were not treated and are unlikely to be treated as trademark infringements. The analysis of Trademark Law supports this finding because the law requires trademark owners to initiate the legal process of infringement of their trademark, a requirement that “burdens” the trademark owner. However, this article suggests that counterfeit medicine cases should be treated as infringements of the Trademark Law. Article 100, paragraph (4) of the Trademark Law provides higher criminal sanctions that, if applied by both prosecutors and judges, would impose such higher criminal sanctions and create a deterrent effect on infringers, thus accomplishing the objectives of this law.