C. Trademark Violation

     RI Trademark Law does not explicitly rule the definition and forms of trademark violation. Nevertheless, the concepts are implied in Art. 76 par. (1) of RI Trademark Law concerning settlement of disputes as followed:
“The owner of a registered mark may file a lawsuit against any other party that unlawfully uses his mark for goods and/or services which has similarity in its essential part or its entirety with his mark, in the term of:

        a. claim for compensation, and/or

        b. the termination of all acts that are related with the use of the relevant mark.”

     Accordingly, we can arrive to a logical conclusion that trademark violation is an unlawful use of mark which has similarity in its essential part or its entirety with other party’s mark.

     We can also take conclusion from the criminal provision in Chapter XIV, that trademark violation includes: 1) deliberate and unlawful use of a mark which has similarity in its entirety to a registered mark of another party for the same kind of goods and/or services produced and/or traded (art. 90); 2) deliberate and unlawful use of a mark which has similarity in its essential part a registered mark of another party for the same kind of goods and/or services produced and/or traded (Art. 91); and 3) trade of goods and/or services that are known or shall be known that the goods and/or services resulted from the infringement (Art. 94).

III. SME Development in Indonesia

A. Definition of SME

     There have been several attempts to formulate an accurate definition of SME. SME in Indonesia has been regulated in the Law of the Republic of Indonesia Number 9 of 1995 Concerning Small Enterprises (referred as SME Law). Small enterprise in Art. 1 par. 1 is defined as people economic activity having small scale and shall meet the criteria of capital or annual sales and ownership as regulated in the Law. Art. 1 par. 2 defines medium and big enterprise as economic activity having bigger net capital criteria or annual selling profit in comparison with small enterprises.
The criteria for small enterprise according to Art. 5 par. (1) are:

1. has net capital no more than Rp 200.000.000, including land and building for the business, or
2. has annual selling profit no more than Rp 1.000.000.000
3. belongs to Indonesian citizens
4. independent, not as subsidiary or branch of a company owned, controlled by, or affiliated directly or indirectly with medium or big enterprise;
5. owned by one person, business enterprise having “non legal” or “legal” entity including cooperative.¹⁸

     Table 2 below shows the number of non-legal entities according to the business sector and number of workers.

Table 2. The Number of Non-Legal Entities according to the Business Sector and Number of Workers¹⁹

     Statistics Indonesia provides a definition based upon the number of workers in order to determine the size of business, particularly in the manufacturing sector, i.e.: a handicraft home industry employs 1-4 workers, and a small industry employs 5-19 workers, including the owner.²⁰

     The same definition is also used by the Ministry of Industry and Trade in differentiating between business, i.e.: micro-trading business (1-4 workers), small trading business (5-19 workers), medium-sized trading business (20-99 workers), and big trading business (more than 1oo workers)²¹ . Another criterion is that the annual turnover of less than Rp 1 billion (also used by the Ministry of Industry and Trade).²²

18. Such definition gives blur pictorial representation of medium enterprise, so that it can be concluded as if this enterprise enjoys the same or at least little lesser condition as big enterprise, which in fact turn out to be false. The Law does not even provide the clear criteria for medium enterprise in comparison with big enterprise, though the Law has distinguished or at least recognized the distinction of the enterprise into three main groups: small, medium, and big enterprise.

19. “A Profile of Micro businesses” in http://www.smeru.or.id/newslet/2004/ed10/200410data.htm

20. Statistic Indonesia, Small Scale and Micro Establishment Statistic, hhtp://www.bps.go.id/sector/comser/

21. Departemen Perindustrian dan Perdagangan RI, Rencana Induk Pengembangan Industri Kecil dan Menengah 2002-2004, Buku I, kebijakan dan Strategi Umum Pengembangan Indsutri Kecil Menengah, 2002. See: Regional Economic Development Program, Indonesian-German Government Cooperation and National Development Planning Agency, Kerjasama Teknis Jerman-Indonesia (Deutsche Gesellschaft f?r Technische Zusammenarbeit –GTZ), “Pasar untuk Penyediaan BDS Komersil bagi Usaha Kecil dan Menengah – Laporan ikhtisar”, Laporan Akhir, 2003; and “A Profile of Micro businesses” dalam http://www.smeru.or.id/newslet/2004/ed10/200410data.htm

22.“A Profile of Micro businesses” in http://www.smeru.or.id/newslet/2004/ed10/200410data.htm