Proving a Well-Known Mark Before the Commercial Court

Well-known status is the only route in Indonesian trademark law that does not begin with an Indonesian registration. For a foreign proprietor that discovers its mark already filed here by somebody else, that makes it the most valuable argument available — and the most demanding to prove.

Article 21(1) of Law No. 20 of 2016 requires an application to be refused where the mark is substantially or wholly similar to: a registered or earlier-filed mark of another for similar goods or services; a well-known mark of another for similar goods or services; a well-known mark of another for dissimilar goods or services meeting certain requirements; or a registered geographical indication. Article 21(3) adds the separate ground that an application filed in bad faith shall be refused.

Those grounds also support cancellation of a registration that has already issued, under Article 76 — and where bad faith is the ground, Article 77(2) removes any limitation period.

A correction worth making first

Most published guidance on well-known marks in Indonesia — including material still circulating from reputable sources — cites the criteria by reference to Minister of Law and Human Rights Regulation No. 67 of 2016.

That regulation has been revoked. Minister of Law Regulation No. 5 of 2026 on Trademark Registration was enacted in January 2026, took effect on 22 February 2026, and revoked both Regulation No. 67 of 2016 and Regulation No. 12 of 2021.

We flag this for a practical reason, not a pedantic one. A submission that cites a revoked instrument invites an easy attack from the other side and costs credibility with the bench before the substance is reached. Anyone preparing a well-known mark argument should verify the current instrument rather than rely on secondary summaries, which still reproduce the old article number without noting the revocation.

The criteria, and the evidence each one needs

Nine factors are applied in practice. Each is an evidentiary target, and each requires a different kind of document:

• Knowledge or recognition of the mark in the relevant business sector. An independent survey of that sector — not the general public — together with trade association statements and specialist press.
• Sales volume and the profit derived from use of the mark. Audited accounts, invoices, customs and tax records, distributor reports for the Indonesian market specifically.
• Market share held in relation to circulation of the goods or services. Sector research by class, retailer and marketplace listings, import volumes.
• Geographic reach of use. Distribution agreements, outlet lists, shipping records, marketplace delivery coverage.
• Duration of use. The first commercial invoice, the earliest advertising, and continuous-use evidence year by year.
• Intensity and promotion, including investment in promotion. Media plans, agency invoices, campaign reach, platform spend reports.
• Registration or applications in other countries. Certified extracts from foreign registers, WIPO and Madrid records, pending applications.
• Successful enforcement, in particular recognition as well known by a competent authority. Prior decisions in Indonesia and abroad, customs seizures, successful oppositions and takedowns.
• The value attaching to the mark from its reputation and the quality assurance of the goods or services. Brand valuation reports, quality certifications, product approvals, licensing royalties.

Where surveys belong — and where they do not

We have written separately that a consumer recognition survey cannot answer the question posed by Article 74, because use in trade and recall are different facts. The position here is the opposite, and the distinction matters.

When the issue is whether a mark is well known, reputation is the fact in issue. A properly constructed survey of the relevant sector is directly probative, and in practice it is close to indispensable for the first criterion.

Two cautions follow from the first article, and they apply with equal force to a survey filed in support rather than in defence. A survey is not an item of evidence under Article 164 HIR or Article 1866 of the Civil Code; it enters as a written document or through an expert, and the court weighs it freely. And its value depends entirely on method — the definition of the relevant sector, the sampling frame, whether recall was aided or unaided, and the independence of the party that designed it. A survey of the general urban population, commissioned after the dispute began, proves very little.

Why Indonesian courts read this strictly

The requirement is not that the mark is famous somewhere. It is that it is well known here, to the relevant sector, at the material time.

That has two consequences foreign proprietors consistently underestimate. Global recognition does not travel automatically: a mark dominant in Europe may be unknown to the Indonesian trade in its category. And the relevant date is historic — what the sector knew when the opposing application was filed, not what it knows now, after the dispute has generated publicity.

Evidence assembled after a claim is filed has to reach backwards, and that is precisely when it is hardest to obtain.

Build the record before you need it

The practical conclusion is the same one that runs through everything we publish on evidence: the file is cheap to build in advance and expensive to reconstruct.

• Keep Indonesian sales and import figures separable from regional totals. A consolidated ASEAN number proves nothing about this market.
• Record media spend directed at Indonesia specifically, with dates.
• Collect certified register extracts from other jurisdictions periodically, not at the point of need.
• Keep every enforcement outcome — takedowns, customs actions, oppositions — with the decision document, not just a note that it happened.
• If a survey is ever commissioned, fix the methodology in writing before fieldwork and keep that instruction. Independence is provable only in advance.

Our position

Well-known mark protection exists so that a proprietor who has genuinely built a reputation is not stripped of it by whoever reached the registry first. That is a protection we argue for, and it sits comfortably beside everything else we have written about use.

It is not, however, a route around the use requirement. A mark is a sign used in trade. Well-known status answers a different question — whether the relevant sector here already associates that sign with its proprietor — and it answers it on evidence, not on assertion or on the size of a global advertising budget. A proprietor with real trade and a real record will meet it. One with neither will not, and should not.

Primary sources

• Law No. 20 of 2016 on Trademarks and Geographical Indications — Articles 21(1)(b), 21(1)(c), 21(3), 76, 77 (accessed 5 October 2026)
• Minister of Law Regulation No. 5 of 2026 on Trademark Registration, enacted January 2026 and in force 22 February 2026, revoking Minister of Law and Human Rights Regulation No. 67 of 2016 and Regulation No. 12 of 2021 (accessed 5 October 2026)
• Article 164 Herziene Indonesisch Reglement (HIR) and Article 1866 of the Indonesian Civil Code (accessed 5 October 2026)
• Constitutional Court Decision No. 144/PUU-XXI/2023, pronounced 30 July 2024