Token Use: Where Trade Ends and Theatre Begins

There is a pattern anyone who litigates non-use claims in Indonesia will recognise. A registration sits untouched for years. A cancellation letter arrives. Within weeks the file acquires invoices, a distribution agreement, photographs of packaging, and a modest quantity of goods sold to a company whose directors share a surname with the registrant’s. The paperwork is not forged. It is simply manufactured, and manufactured for one purpose.

Indonesian law gives the court no arithmetic to settle this. Article 74 of Law No. 20 of 2016 permits deletion where a mark has not been used in trade in the goods or services as registered. It fixes a period — five years since Constitutional Court Decision No. 144/PUU-XXI/2023 — and it fixes excuses, which track the valid reasons recognised in Article 19 of the TRIPS Agreement. What it does not fix is a minimum quantity. There is no threshold of rupiah, no number of units, no required market share.

That silence is not a gap in the statute. It is a decision to leave the matter where it belongs: as a question of fact.

Why a volume threshold would be the wrong tool

It is tempting to wish for a number. A number is predictable and cheap to apply. It is also the single reform most likely to destroy the very businesses the Act set out to protect.

Any fixed quantity is a quantity someone cannot reach. A producer supplying three districts through a handful of stockists will fall below almost any national figure that a drafter would consider meaningful, while trading continuously and genuinely. Meanwhile a well-funded registrant with no real presence can clear any threshold by buying its own goods once. A volume test punishes the small trader and is trivially satisfied by the party it was meant to catch.

Seven indicia of manufactured use

None of these is decisive alone. Together they are usually dispositive, and they are the lines along which the evidence should be built or attacked:

• Timing against the claim. When did the first transaction occur relative to the demand letter, the opposition, or the filing? Use that begins after the registrant learns of a challenge invites the obvious inference.
• Independence of the counterparty. Were the goods sold to an unrelated buyer at arm’s length, or to an affiliate, a shareholder, or a company sharing directors and an address with the registrant?
• Whether the goods reached an end user. A sale into a related distributor that never sells on is a movement of stock, not trade. Follow the goods one step further than the invoice.
• Continuity. Trade leaves a continuous trail — monthly, quarterly, seasonally. A single cluster of activity surrounded by silence on both sides describes an event, not a business.
• Correspondence with the registration. Use must be in the goods or services as registered. Selling a different product, or using a materially altered form of the mark, does not preserve the entry that was actually granted.
• Pricing and commercial logic. Were the goods priced to be sold, or priced to produce a document? Transactions at nominal value, in quantities nobody orders, carry their purpose on their face.
• Independence of the record itself. This is the strongest of the seven, and it deserves its own treatment.

Records made for other reasons

The most persuasive evidence of use is evidence created for a purpose unconnected with the dispute.

A VAT filing exists because the tax authority requires it, and it was lodged long before anyone contemplated litigation. A customs declaration exists because the goods crossed a border. A marketplace transaction history exists on a platform the registrant does not control, with timestamps it cannot edit. A product circulation permit exists because a regulator demanded it. A bank statement exists because money moved.

These records are credible precisely because nobody made them to win a case. They are also, for the same reason, extremely difficult to fabricate: each sits inside a system with its own records, and each can be checked against a counterparty, a regulator or a platform.

Set that against a self-made invoice, a photograph of a box, and a letter from a related company. Those can be produced in an afternoon, and a court that has seen the pattern before knows it.

The honest trader’s problem

There is a mirror image to all of this, and it is the more common injustice.

A genuine business — often a small one — trades under its mark for years without keeping an orderly file. Invoices are handwritten. Tax records exist but were never matched to the mark. Packaging changed three times and nobody kept the old version. When the challenge comes, the use was entirely real and the proof is in pieces.

That party is not a squatter. It is a trader with a filing problem, and it can lose a mark it has actually built. The remedy is unglamorous and it is cheap:

• Keep one folder per registration, organised by class, not by year.
• Put the first invoice bearing the mark in it, and one invoice from every subsequent quarter.
• Keep one physical specimen of packaging each time the artwork changes, dated.
• Export the marketplace transaction history annually; platforms purge old data.
• Note the registration number on tax and customs documents where the form allows it.

Five minutes a quarter converts a defensible position into a provable one.

Our position

Token use should fail. A registration maintained by a transaction staged for the court is a reservation dressed as a business, and the Act creates no right to reserve. We say so without qualification, and we would say it against our own client.

But the test that defeats token use must be a test of substance, not of scale. If the court asks how much did you sell, the manufacturer of evidence clears the bar and the genuine small trader does not. If the court asks why do these transactions exist, the answer separates them cleanly — and it separates them without reference to the size of anyone’s balance sheet.

That is the whole of our position on use, stated in one line: the dividing line is whether trade happened, not how much of it there was.

Primary sources

• Law No. 20 of 2016 on Trademarks and Geographical Indications — Articles 1(1), 74 (accessed 5 October 2026)
• Constitutional Court Decision No. 144/PUU-XXI/2023, pronounced 30 July 2024
• TRIPS Agreement, Article 19, on the requirement of use and valid reasons for non-use (accessed 5 October 2026)
• Article 164 Herziene Indonesisch Reglement (HIR) and Article 1866 of the Indonesian Civil Code (accessed 5 October 2026)