INDONESIA LAW AND PRACTICE Contributed by: Agus Ahadi Deradjat (Agung), Gustaaf Reerink, Adri Dharma, Karina Widyaputri and Ilma Sulistyani, ABNR Counsellors at Law
6.4 Abuse of Dominant Position Article 25 of the ICL specifically defines abuse of a dominant position. Undertakings are pro - hibited from taking advantage of their dominant position, either directly or indirectly, to: • impose trade terms with the intention to prevent or hamper consumers from acquiring competitive goods or services, on price or quality; • restrict the market and technological develop - ment; or • hamper other undertakings, with the potential to become competitors, from entering the relevant market. Under Article 25 (2) of the ICL, there is domi - nance if: • one undertaking controls 50% or more of the market share for one type of product or service; or • two or three undertakings or groups of under - takings control 75% or more of the market share for one type of product or service. This above provision should be read in conjunc - tion with Article 1 (4) of the ICL, which defines “dominant position” as a situation in which an undertaking has no meaningful competitors in the relevant market in view of the market share that it holds, or the undertaking holds a high - er position among competitors in the relevant market in view of financial capability, the ability to access supplies and sales, and the ability to adjust offer and demand of certain products and services. Article 25 constitutes a “per se” prohibition, meaning that once the required elements are fulfilled, the KPPU can conclude that a viola - tion has been legally and convincingly proven.
Nonetheless, in practice, the KPPU frequently strengthens its findings by assessing and dem - onstrating the impact of the abuse to substanti - ate the evidence and justify the imposition of sanctions. While Article 25 outlines specific forms of abuse, other types of abusive conduct may still fall under different provisions of the ICL. Undertak - ings that engage in abusive conduct may still fall within the scope of other provisions under the ICL, even if they do not meet the market share thresholds for dominance, as long as they pos - sess market power. Market power exists when an undertaking can profitably raise prices above competitive levels. This power may arise from dominance or a substantial market share, or from specific factors such as: • ownership of intellectual property rights or exclusive licences; • special positions granted by government regulations; • control over distribution networks; • financial backing (eg, from a parent com - pany); or • high entry barriers. Provisions applicable to undertakings with mar - ket power include Article 6 (Price Discrimination), Article 11 (Cartels), Article 14 (Vertical Integra - tion), Article 15 (Exclusive Agreements), Article 19 (Market Control), and Article 20 (Predatory Pricing) of the ICL.
7. Intellectual Property 7.1 Patents
Patent protection in Indonesia is governed by Law No 65 of 2024, the third amendment to Law No 13 of 2016 on Patents (“Patent Law”). A pat -
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