Firm Profile > Kusnandar & Co. > Jakarta , Indonesia

Kusnandar & Co.
EQUITY TOWER, 25TH FLOOR, SUDIRMAN CENTRAL BUSINESS DISTRICT (SCBD)
JL. JEND. SUDIRMAN KAV 52-53
JAKARTA 12190
Indonesia

Intellectual property Tier 4

Kusnandar & Co. is currently very active in trade mark and copyright infringement issues. Founding partner Winita Kusnandar is a key figure and an expert in IP litigation. She is supported by Arno Rizaldi D. Kwok , who also focuses on contentious issues.

Corporate an M&A

1. Client :
Industry Sector : Real Estate, Palm Oil, Infrastructure.
Matter Overview : Correspondences and liaison with the MoA and the BKPM

Summary

A new client had intention to (i) convert its company to become a foreign investment company, (ii) enhance large-scale business operation, and (iii) add and reduce its scope of business for which we had to review the various prevailing laws and regulations in order to make the conversion.

During our research and investigation prior to making the conversion, we were informed that this particular company/client had not obtained any Technical Recommendation from the DGoF (“ReComTech”), albeit having obtained a Permit of Land Expansion (“PoLE”) issued by the Investment Board. Consequently, this the DgoF felt highly insulted and refused to assist with the new intended conversion altogether.

Not having been involved in its prior processes, we had to step in and accordingly act as a liason between the 2 (two) governmental agencies in order to continue proceeding with our client’s intention for a company conversion as issues such as this may tend to happen often in Indonesia due to the different agencies having overlapping functions and roles, which only further confuses investors thus causing unnecessary constraints on the business development of a company.

Finally, we endeavored bridged the misunderstandings, legal misrepresentations and confusions caused and effecting the government agencies themselves and successfully processed the ReComTech from the DgoF and ultimately a new PoLE from the Investment Board in order to move along with the company conversion.

2. Client :
Industry Sector : Real Estate, Palm Oil, Infrastructure.
Matter Overview : –

Summary

Our client, a Singapore Stock Exchange listed – foreign investment company holds valid licenses for its palm oil plantation business in West Kalimantan. Out of nowhere, a third party, mining company, claims to have command over a part of our client’s plantation area for bauxite mining purposes and requests our client to relinquish the right of such part of the plantation.

Upon our visit with the local government and authorities in West Kalimantan to resolve the disputed part of the plantation, we found that there is indeed a double issuance of licenses over the same land area. Nevertheless, and strangely enough, the local government and authorities did not want to get involved and asked the parties to resolve the issues amongst themselves.

Given that both companies hold equally compelling government licenses, and having weighed our clients’ business operations and options at that time, to exhaust the matter, having acted as a mediator between the parties, we had managed to persuade our client to cut a deal with the mining company to give exploration permission over the land of concern albeit strictly adhering to a MoU.

II. Dispute Resolution

1. Client :
Industry Sector : Dispute Resolution and Construction Case
Matter Overview : Breach of Contract

Summary

Our Client is a commercial construction company engaged in a project to build high-end town houses at a prestigious housing estate in Jakarta, a project worth $64 Million Dollars. In the course of construction, the regional city planning office of Jakarta deemed some of the houses being built to have violated building code and was razed. Thereafter, our client and the project owner embarked upon a new agreement to do rectification work on the units razed (“Rectification Houses”). Having completed the rectification work, the project owner single handedly alleged that our client did not complete the rectification work on time and inconsistent in terms of quality, which was previously agreed upon by the parties, none of which supported with evidence.

The project owner accordingly refused the handover of the Rectification Houses and having reached a deadlock in negotiation, the project owner served our client with a cease and desist letter claiming damages of $35 Million Dollars, none of which are supported with evidence.

We had alleged that the Project Owner was also experiencing financial difficulties as prior to the case aquo, as evident by a trail of unpaid invoices and various unsettled invoices, and thus as a means to avoid paying our client. Upon further thoughts, our client proceeded to lodge a lawsuit against the project owner and asked us to represent them.

Given the no evidence provided by the project owner, we managed to secure a favorable decision from the District Court of South Jakarta which became valid and binding as the project owner could not furnish the court with any evidence thus negating any purpose to appeal at the High Court level.

2. Client :
Industry Sector : Tourism, Hospitality
Matter Overview : –

Summary

On going labor case for which we represent our client, a hotel located in Jakarta, in which a disgruntled former employee had lodged a suit with the court alleging that our client has unfairly terminated her employment. In the case aquo, the opposing counsel is a pseudo non-governmental organization actively fighting for workers’ rights often times by using any means necessary.

In Indonesia, the labor court tend to be very careful when dealing with these so called workers’ fighters as the narrative can often be manipulated and unfairly exposed in the media in order to win a favorable judgment through sympathy as oppose through the merit of the case according to the Law.

The panel of judges at the labor court has just rendered a judgment that is not only weak but vague for both party which we shall now appeal for at the Supreme Court level.

III. Intellectual Property

1. Client :
Industry Sector : Tourism, Consumer Services, Real Estate
Matter Overview : Representing a well-known foreign investment company in Bali to take legal action on allegations of copyright infringement.

Summary

Copyright dispute over broadcasting rights of a popular television event allegedly broadcasted without rights and/or permission from the broadcasting right holder.

This case is unique in that it could have been tried as a civil matter or an intellectual property matter. Even though the case is ultimately tried as an intellectual property matter, there were many missteps within the Indonesian legal system that enabled various parties to exploit the proceeding for personal betterment.

As a seasoned firm familiar with intellectual property, Kusnandar& Co.’s in its in-court arguments, written claims and documents, had the opportunity to not only state its petitions but also educate the parties involved in the case aquoto better understand the issues related to the matter.

As with any litigation matter in Indonesia, Kusnandar& Co. had to tread carefully in handling the case aquoso as to avoid any and all matters related to corruption, collusion and/or nepotism while at the same time obtaining the most favorable judgment possible for the client.

The case aquo is still ongoing.

2. Client :
Industry Sector : Consumer Services.
Matter Overview : Representing a well-known fast food company to take legal action.

Summary

Trademark infringement by local business for using a very iconic fast food logo without rights located in Bandung, West Java, Indonesia.

The case aquo is significant because it is proof that the intellectual property knowledge in Indonesia is still very much in its infancy. The case involved a local franchise business in the food and beverage industry that is blatantly using the iconic logo owned by our client. Given

the highly professional operation and vast business practice of the infringer clearly reflecting the sufficient education background of its owners and/or operators, it was a surprise for us to realize that the owner knows nothing about the importance of intellectual property rights.

Further, and classically enough, it is without a shadow of a doubt that the very act of the infringement itself had boosted the infringer’s business.

Moreover, we have learned from this case that much to our chagrin, even the media industry, which existence relies heavily on intellectual property protection, still does not understand the severity of the infringement and instead using it as a highlight of various published articles both on and offline.

Upon various cease and desist episodes with the infringer, and many arguments and discussions, the infringer finally understood the significance of legally owning a trademark and acknowledged his action of infringing our client’s trademark.

3. Client :
Industry Sector : Food and Beverages Services
Matter Overview : Representing an American Chain Restaurant to take legal action against its trademark infringement

Summary

Our team of investigators, in its regular investigative exploration, found that a small medium enterprise has liberally infringed upon our client’s, a substantial American Chain Restaurant, trademark and logo by using it as its own.

Given the nature of asian food culture, whereby word of mouth, comparative markings and product association is highly important to attract customers, the use of our client’s trademark and logo by the infringer was highly damaging.

In tackling the case aquo, our client had implored us, to the best of our ability, to approach the infringer in the most sensitive and friendliest manner possible as our client’s business relies on the same market share as the infringer and does not want to appear as a bully against local small medium enterprises.

Ultimately we approached the infringer by a cease and desist letter and further verbal socialization with the infringer’s admission of fault and the issue subsequently remediated, thus making this a successful ending of the case.

4. Client :
Industry Sector : Consumer Goods
Matter Overview : Representing a well-known Toys company to take legal action.

Summary

Our team of investigators again found the logos and trademarks of our client, a very popular consumer goods brand from the United States, on thematic toys sold in high-end local chain toy stores around Indonesia.

The complexity of the case arise as our client also produces and distributes similar products as a gift with purchase of its actual merchandise.

The infringing product itself is manufactured and distributed from China.

Having weighed the options, together with our client, we found that it would not be in our client’s best interest to pursue and claim the local-chain toy store for damages. Accordingly,

we furnished the details of the manufacturer to the best of our knowledge and pass the case to our associate in China to pursue.

5. Client :
Industry Sector : Media Industry
Matter Overview : Representing a well-known International News and Entertainment Media company to take legal action.

Summary

Our client is a legendary and iconic publication and media company from the United States. This is the second case in which its trademark is wrongfully infringed upon by a local Indonesian company, the first case of which we had also successfully handled and concluded some years back.

The blatant infringement against our client by a local Indonesian publishing company (infringer) is highly damaging and misleading as it is marketed as our client’s publication to the consumers as well as to its advertisers, that the infringer had successfully been able to secure advertising from Fortune 500 companies both local and foreign.

Such infringement is further exacerbated by the infringer actually having political motivations since as it turns out the publisher holds a seat in the Indonesian parliament and uses the publication as his platform for political agenda, a move that is clearly abhorred by our client who tirelessly fights to be neutral on all issues.

The infringer had apparently wished to exist for the long-term as it had audaciously endeavored to apply its infringing trademark for protection, albeit by manipulating its design so that it would not appear infringing to the examiners of the Mark Office.

We had served the infringer with cease and desist letters which were responded by its lawyers who basically said that they have no intention of stopping the infringement and further asked us to notify them first prior to lodging a lawsuit with the commercial court, a bullying request that we are all too familiar with whenever dealing with local parties with alleged power.

Nevertheless, we not only filed opposition against such trademark application which was clearly filed in bad faith and further published a notice on several Indonesian newspapers calling out the infringement.

Ultimately, we must commend the Mark Office for its professionalism and not cave to external pressure by rejecting all of the infringing applications thus giving them no other choice than to replace its trademark and logo with something else that does not infringe upon our client’s intellectual property.

We are proud to have successfully concluded this case without having to bring it to court which would have been arduously long and unnecessarily costly for our client.

IV. Labour and Employment

1. Client :
Industry Sector : Labour and Employment
Matter Overview : –

Summary

Our client, an Italy based foreign investment furniture company based in Central Java, found that members of its Board of Directors (“BoD”) have committed default within the company

by allowing another business to use our client’s production facilities without any prior authorization. Our firm was engaged to identify the key personnel involved and the remedial solutions required to terminate the defaulted parties and to reappoint its replacements along with tenewing and strengthening the company’s various employment agreements, company and work rules, etc.

2. Client :
Industry Sector : Labour and Employment
Matter Overview : –

Summary

Our client, an American business management consulting company, is merging with another American company engage in more or less the same business. Our client has so far been well-known for its benevolence towards its employees whereas its merger partner is known to be cut-throat and less than generous towards its employees and their benefits.

As a result of the merger, not only were standard operating procedures and company culture had to be amended, but also many employees from both companies were made redundant. One of the employees to be made redundant is a long time American expatriate which our client’s merger partner deems too old to remain useful and thus offered to be let go with a 1x severance pay package. Having worked for our client for 17 years in Indonesia, all of which under contractual basis, the employee of concern requests for an 8 months severance pay package.

Given the arguments, our client came to us seeking for advice as to what to do. Having reviewed the case aquo, we informed our client that an employee is deemed to have attained permanent status if he/she has worked for a particular company for more than years consecutively. Therefore, in order to avoid problems in future, we gave our our opinion and advice to our client to abide by the Labor Laws in settling the severance pay of such employee.

V. Real Esatate

1. Client :
Industry Sector : Real Estate; Land Matter
Matter Overview : Illegal Resale of Land by Previous Owner’s Heirs

Summary

Our client is a Jakarta based real estate developer company. In late 2018, our client contacted us in urgency informing us that part of their land located in the outskirts of Jakarta is in the midst of being fenced in by an unknown party claiming ownership. Upon conducting investigation in the matter, we found out that the community leader in the area of concern was looking to make extra money by telling the previous owner’s heirs that they can still claim share over the previously sold land and resell it to another party for a profit.

We conducted Legal due Diligence on all the legal matters with regard to the sales purchase transaction of the land and concluded that our client is the rightful and legal owner of such land. Nevertheless, as with many matters concerning local communities in Indonesia, the community leader and the previous owner’s heirs had engaged the services of the local mafia to safeguard the land thus preventing us to stop the construction of the fence.

Accordingly, we had no other choice but to engage the Police and had them take over. Only with the presence of the Police did the community leader and the previous owner’s heirs stop construction of the fence. Thereafter, the community leader and the previous owner’s heirs

were summoned by the Head of the District and was made to sign a minutes signifying that they do not in fact have any ownership of the land and that our client is indeed its true owner.

Given the presence of the Police, neither the Head of the District, the community leader,nor the local mafia had the courage to ask our client for any settlement money, which would have been the case otherwise.

Our client has since fenced in the land in the hopes that no other party will illegaly claim it again in future, although nothing is guaranteed. Our client was lucky that no other land title had been issued in duplicity and that the land had not been sold to another party, a practice that is rampant in this country and would have made matters much more complicated.

2. Client :
Industry Sector : Consumer services, Infrastructure, Real Estate.
Matter Overview : –

Summary

In the spirit of Law No. 5/1960 concerning Land and the Government Regulation No. 4/2010 concerning the procedure of controlling abandoned land, the land office had launched a campaign to locate land owners whose land is allegedly abandoned with the objective to take over ownership/control of such land so that it can benefit the public at large.

While the government’s initiative to exploit abandoned land for the good of the masses is indeed noble, there is not enough socialization and/or consideration over land owners’s business concerns as there have been many problems within the country in terms of the economy, natural disasters, geopolitical and/or social circumstances that disable land owners to exploit its land.

We argued on behalf of our client that the land of concern is not abandoned as there are indeed various business activities planned for it and that the government cannot apply a one-size-fits-all consideration in taking over of ownership/control of a land.

In the end, we successfully convince the Land Office’s objective not to take over ownership/control of our client’s land.

3. Client :
Industry Sector : Real Estate; Land Matter
Matter Overview : Illegal Trespassing and Land Squatting

Summary

We have a client who is a land banker whose business is to buy parcels of land to just sit on and wait for the right time to develop into real estate or sell to a developer. In 2018, our client contacted us informing us that a neighbor at one of his parcels of lands located in Bogor, West Java, Indonesia had suddenly trespassed onto his property and started erecting fences.

Upon investigation, we found that the neighbor is in fact a real estate developer company about to start construction of a real estate project on their own land which borders our client’s land.

The problem arose when the neighbor claimed that a portion of our client’s land is part of theirs. In order to resolve the matter, we had to conduct various searches and investigation at the Land Office and contacted the previous owners as well as the notary public taking care of the sale and purchase of our client’s land.

We managed to find all documents evidencing that our client has rightfully and legally owned its land as claimed and thus the neighbor was totally wrong to trespass and claim otherwise.

Luckily the problem was caught on early and the real estate had not been built and its sub-division houses sold to consumers.

VI. Shipping

Client :
Industry Sector : Shipping
Matter Overview : We conducted various research and review of the Indonesian Commercial Code, Shipping Law, jurisprudences, Directorate General of Sea Transportation of the Ministry of Transportation and the various courts of Indonesia. We could finally rest assure our client, the vessel owner, that even though the charterer can apply for a court order ot arrest the vessel of concern for the purpose of securing the claim for damages, the Indonesian Shipping Law itself will inherently refuse all requests on a security attachment for a ship arrest order. Ultimately, the court refused the petition for the pre-judgment arrest and the vessel owner was able to complete its on-going charter party and ultimately pay the damages as awarded by the arbitration.

Summary

A sea-going vessel has been involved in a collission in Indonesian waters. The foreign owned vessel was under hire by a non-Indonesian charterers who has sustained damages resulting in the collission. Given that the charter party provides for English Law and arbitration, the parties had immediately commenced said arbitration at the London Arbitration. In the interim, the charterers had sought to apply for a pre-judgment arrest in order to obtain security for its claim. Having represented the vessel owner, as the vessel of concern was in the middle of a different charter party, we were instructed to exploit ways to block any possibility of a pre-judgment arrest as it would create damaging domino-effect circumstances to the subsequent on-going charter party thus making it even more difficult for the vessel owner to pay the charterer’s claims for damages which it had intend to pay anyway.

VII. Tax

Client :
Industry Sector : Real Estate, Palm Oil, Infrastructure.
Matter Overview : Tax office Blunder

Summary

Our client had obtained a parcel of land through the Greenbelt Land Swap (“GRTT”) scheme from the government. Accordingly, our client had paid the property acquisition taxes based on the government appraisal of the land. Given that this is a plantation, the property acquisition taxes consist of paying for the taxes on the greenbelt as well as taxes on the land. Nevertheless, after a few months have passed, the Regional Government Revenue Office of Ketapang city (“Bapenda”) claimed that our client had not paid for the greenbelt taxes of the property acquisition taxes. Further, oddly enough, the Bapenda’s claim on the greenbelt taxes was based on the palm tree sapplings that our client had planted themselves instead of the plants that were there during acquisition period. It seems that the Bapenda was very late in quantifying the greenbelt taxes or did not think that our client would immediately utilize the land.

Ultimately, we had to argue and prove to the Bapenda that no only were there no plants at the time of acquisition as the land was vacant, but also that they had mistakenly quantified our clients’ own planted palm tree sapplings as part of the property acquisition taxes.

Winitta E. Kusnandar, Managing Partner

What do you see as the main points that differentiate Kusnandar & Co. from your competitors ?

Founded in 1980, Kusnandar & Co. is one of Indonesia’s most respected and oldest law firms. We are experienced in the arrangement and engineering of refined legal, tax and financial matters in a wide variety of projects and transactions, reaching both within and outside of Indonesia’s borders. We pride ourselves on being a 100% locally owned and operated firm which retains in-house foreign consultants with local expertise, nurturing foreign and local affiliations, as well as associations and alliances with law firms and legal organizations throughout the world. The eve of our 40th Anniversary only further validates our relevance in the Indonesian legal industry.

As the world globalize and the legal ecosystem evolve, we continue to prove our sustainability by consistently maintaining high standards of services pertinent to today’s business environment as evident by our steady clienteles many of which are Fortune 500 companies.

Which practices do you see growing in the next 12 months ? What are the drivers behind that ?

Given the rather weak economy worldwide this year including Indonesia, we foresee a growth in merger and acquisition cases, liquidation and insolvency matters and possibly issues pertaining to civil litigations. In 2019, we are hearing many grievances from our clients pertaining to how slow business has been for them as well as we ourselves experiencing an especially complicated and hostile environment when it comes to processing almost all matters with the government. At an alarming level that is almost unprecedented, we have as of late experienced excessive bureaucracy and/or adherence to rules and formalities which in turn would needlessly delay business activities all of which, or so we are informed, is done in the spirit of system streamlining, single window service, organization modernization, etc. Nevertheless, foreign banks notably are convinced that global economy crisis would end in 2020 considering that the US General Election would be due in 2020 and as would Brexit be predicted to take place without much problem.

What’s the main change you’ve made in the firm that will benefit clients ?

Kusnandar & Co. has now adopted a more informal approach when it comes to communicating with clients. If previously our communications are limited to our office facilities and emails, our lawyers are now reachable for discussions and updates even outside office hours. Historically, even though 99% of our clientele are predominantly foreign companies, we are now also entering into domestic markets. We have opened our offices in Bali and Surabaya to better facilitate clients that are not necessarily in Jakarta, the capital city of Indonesia.

Is technology changing the way you interact with your clients, and the services you can provide them ?

Technology has definitely changed the way we interact with our clients by way of communication as well as services, especially in terms of administration as we can provide them with the perpetual streams of remarks, updates, permit statuses and/or license processings which ultimately would help our clients keep their legal expenses down. We have also adopted technology as a means of communications and meetings in our effort to avoid any unnecessary physical meetings which may require any party of concern to travel therefore keeping costs down.

Nevertheless, we are also aware of the government’s efforts to integrate their bureaucracy into technology which so far has been unsuccessful for the most part, and thus we still have to continue to maintain close networking and relationship with the personnel of various departments and ministries in order to undercut their technological failures and maintain efficiency when attending to our clients’ needs.

Can you give us a practical example of how you have helped a client to add value to their business ?

At Kusnandar & Co., we have always been practiced the sense of belonging. We add value to our clients’ businesses by closing any loopholes in their businesses that potentially can threaten and/or jeopardize themselves. Often in the business world no news is considered good news. Nevertheless, as their legal consultants and attorneys, our job is to ensure client’s fortification and defense against the most unforeseeable threat, even when seemingly impossible. We also keep ourself updated with in fields of businesses that our clients are engaged in. For instance, as we have maritime, plantation and hoteliere clients, we make ourselves continuously afresh with legal developments in those areas.

Our allegiance to our clients is unseconded as we treat our clients’ businesses as our own, which makes the clearance of any conflict of interests with any of our client a crucial step of the relationship. As a result, we have numerous clients who would not make any decision without first seeking our approval, although in the spirit of looking out for our clients’ interests and keeping their expenses down we have also maintained our integrity and not frivolously offer services that would otherwise be lucrative for us but unnecessary for our clients.

Are clients looking for stability and strategic direction from their law firms – where do you see the firm in three years’ time ?

Throughout almost 40 years, we have seen many clients come and go as well as clients who seemingly just cannot let go of our hands. Stability and strategic directions, although important during time of engagement, may not necessarily be important to all clients in the long run, especially those who are only seeking legal advisories on a seasonal basis. Further, as the number one factor in engaging a legal advisor has increasingly become cost efficiency, we are experiencing a lack of loyalty from fresh companies and new organizations. Nevertheless, with the ever increasing number of new businesses incepted everyday, a tougher competing marketplace and our pool of retainer clients, our own legacy calls us to continue to maintain our integrity and retain our mark in the industry as a one-stop legal service not only for the next three years but also for generations to come.