Most multinational trademark portfolios in Indonesia contain registrations nobody inside the company could currently defend. Not because the business abandoned them, but because they were filed for a purpose that produces no evidence: holding a class open, blocking a competitor, reserving a product name that marketing has not launched yet.
Under Indonesian law those entries are exposed in a specific way, and the exposure is measurable. This piece sets out how to measure it.
The arithmetic of a defensive filing
Two provisions govern the shelf life of a registration, and they do not align.
Article 35 of Law No. 20 of 2016 grants protection for ten years from the filing date, renewable for successive ten-year terms, with renewal applications filed in the six months before expiry and a six-month grace period after. That is the administrative clock, and it is generous.
Article 74 runs a second clock that most portfolio managers never see. Any interested third party may bring a deletion action before the Commercial Court on the ground that the mark has not been used in trade for a continuous period — three years under the original text, and five years following Constitutional Court Decision No. 144/PUU-XXI/2023, decided on 30 July 2024.
The gap
A registration can be fully paid up, properly renewed, and administratively impeccable, and still be removed because nothing was ever sold under it. Renewal fees buy nothing against Article 74. The only defence is evidence of use, or an excuse recognised by the statute.
What the extension actually bought
Decision 144 is usually discussed in terms of what it does for registrants who are not using their marks. For a brand owner with a defensive portfolio, the practical effect is narrower and more useful: the window in which an unlaunched entry is vulnerable narrowed from three years to five, and interruptions caused by force majeure now sit inside the statutory exceptions.
The Court amended Article 74(2)(c) so that the phrase “similar prohibitions” must be read to include force majeure conditions as governed by Government Regulation. Alongside the pre-existing exceptions — import prohibition and temporary regulatory restriction — that gives a brand owner three recognised reasons why a mark may sit unused without forfeiting protection.
| Scenario | Before Decision 144 | After Decision 144 |
|---|---|---|
| Class reserved for a product launching in year four | Vulnerable from year three | Protected to year five |
| Launch deferred by a pandemic or natural disaster | No clear statutory excuse | Force majeure exception available |
| Marketing authorisation pending at BPOM | Arguable under temporary regulatory restriction | Same, with a clearer framing |
| Import of the product prohibited | Exception available | Exception available |
| Variant reserved indefinitely, no launch planned | Vulnerable | Vulnerable — two years later |
The last row is the one to read twice. Nothing in the decision protects a registration that will never be used. It moved the date.
Who actually brings these actions
Not, in the usual case, a squatter. The typical claimant under Article 74 is a business that wants the mark and cannot have it: a domestic company whose preferred name is blocked in a class where the registrant has no product, or a competitor clearing the way for its own launch.
That shapes the risk. A defensive entry in a class the business genuinely occupies is rarely attacked, because the claimant gains nothing. The entries that attract claims are the ones blocking somebody with a live commercial reason to want them — which usually means the reserved classes furthest from the brand owner’s actual trade.
Those are also the entries hardest to evidence, because there is nothing to evidence.
An audit you can run this quarter
The exercise is not a legal opinion. It is an inventory question that a trademark manager can answer with a spreadsheet, and it should be answered before anyone files a claim rather than after.
For every Indonesian registration, record four things:
- Filing date, and the date of the last documented use. The Article 74 clock runs from registration or last use, whichever is later. For a mark in continuous use the clock never starts.
- What could be produced within thirty days if a claim were filed tomorrow. Not what exists somewhere in the group — what could actually be retrieved, in Indonesia, under this mark, within a month.
- Whether a recognised excuse applies, and whether it is documented. An import prohibition, a temporary regulatory restriction, or force majeure. An excuse nobody recorded at the time is much harder to establish later.
- Whether anyone else plausibly wants the class. A reserved class nobody is competing for carries a different risk profile from one blocking an active market entrant.
The output sorts into three groups. Entries with ready evidence need nothing. Entries with a documented excuse need the documentation filed somewhere findable. Entries with neither are the live exposure, and there are usually more of them than expected.
What counts as evidence, and what does not
The burden of proving non-use rests on the claimant, not on the registrant. That matters: a registrant does not have to prove use in the abstract, it has to rebut a case the other side has built, usually around a commissioned market survey.
Survey evidence has a structural weakness worth understanding. A consumer-recognition survey conducted across provincial capitals measures the reach of advertising. It does not detect a single distributor relationship, a business-to-business supply arrangement, or sales through a marketplace storefront. A brand owner whose Indonesian presence runs through one exclusive distributor is, evidentially, in much the same position as a micro-enterprise — invisible to the method, and genuinely trading.
Documentary evidence of actual commercial dealing is the answer to that, and it is within the brand owner’s control:
- Invoices, delivery notes and purchase orders bearing the mark
- Distributor and supply agreements that name the mark
- Import declarations and customs records
- Product registrations and permits held in the mark — BPOM, halal certification, POSTEL approvals
- Marketplace transaction histories with dates and order volumes
- Orders for branded packaging, labels and printed material
- Tax filings attributable to goods sold under the mark
None of this helps if it cannot be found. The practical failure is almost never that the evidence did not exist; it is that nobody could assemble it inside a procedural deadline.
A note on token use
The temptation, on receiving a claim, is to generate activity: a small production run, a few listings, an invoice or two. Indonesian courts have disregarded such use in at least one reported instance, though the practice is not uniform. More importantly, a sudden burst of activity dated after the writ invites the court to read the rest of the record unfavourably. Evidence assembled before a dispute is worth considerably more than evidence manufactured during one.
What to do with the exposed entries
Having identified registrations that could not be defended, four options are available, and they are not mutually exclusive.
- Create genuine use. A limited commercial launch under the mark — a real product, sold to real customers, properly invoiced — restarts the clock from the date of last use. For a reserved variant with a plausible commercial rationale this is often cheaper than litigation.
- License it. Use by a licensee, under a recorded licence, is use. Where a group entity or distributor already sells something adjacent, this may be straightforward.
- Narrow the specification. Where a registration covers goods the business will never sell, consider whether the breadth is worth the exposure it creates. A narrower registration that is fully used is a stronger asset than a broad one that is not.
- Accept the risk, knowingly. Sometimes a blocking registration is worth holding even though it could be removed, because removing it takes a claimant years and the block has value in the meantime. That is a legitimate commercial choice — provided it is a choice, and not an oversight.
The point in one line
Decision 144 gave defensive portfolios two more years of room. It did not make them permanent, and renewal fees were never what protected them. The registrations at risk are the ones your team would struggle to evidence within a month — and the time to find out which those are is now, not when a writ arrives.
General information, not legal advice. This article discusses Indonesian law as it stood when published and is provided for general information. Legislation and regulations change; confirm currency before relying on it. It is not a legal opinion on any specific matter and does not create a lawyer-client relationship. Portfolio decisions depend on the facts of each case and should be taken on advice.
Sources
- Law of the Republic of Indonesia No. 20 of 2016 on Marks and Geographical Indications — Articles 35, 74(1), 74(2), 74(3), 76
- Decision of the Constitutional Court of the Republic of Indonesia No. 144/PUU-XXI/2023, pronounced 30 July 2024 — full text and official summary
- Evidentiary practice in non-use proceedings — Rouse (accessed 3 October 2026)
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 19
Related: cancelling a bad-faith registration, where no limitation period applies