More trademark claims in Indonesia fail on procedure than are decided on their merits. That is not a figure of speech. An analysis of published non-use decisions recorded eleven claims dismissed on procedural grounds against four rejected on substance and ten marks cancelled.
Where claims die
The Commercial Court applies its procedural rules strictly, and a defect in a filed claim cannot be cured. The recorded failures follow a pattern:
- Grounds added after filing. Everything must be pleaded at the outset. A ground omitted is a ground lost.
- Relief beyond the court’s authority. Damages belonging in a separate action, or declarations the court cannot make.
- Standing. Article 76 requires an interested party. Where the entity holding the foreign registrations is not the entity trading in the region, the connection must be settled and documented before filing.
- Service and formality defects that would be curable in an ordinary civil court and are not curable here.
Evidence strategy
The burden of proving non-use rests on the claimant. In practice that burden is discharged through a commissioned market survey, and understanding what a survey can and cannot detect is what separates a strong case from an expensive one.
| Method | Detects | Misses |
|---|---|---|
| Consumer recognition survey | Advertising reach, modern-trade distribution | Single-outlet trade, B2B supply, marketplace sales, regional distribution outside sampled cities |
| Documentary evidence | Invoices, tax records, permits, transaction histories | Nothing — but requires the registrant’s own cooperation or discovery |
| Absence of product approvals | Regulated goods not lawfully sellable | Insufficient on its own; courts require comprehensive proof |
We design surveys to withstand challenge, and we challenge the other side’s survey on method rather than on conclusion — sampling frame, question wording, and whether the instrument was capable of detecting the use it reports as absent.
Token use
A registrant facing a non-use claim can manufacture minimal use once proceedings begin. Indonesian courts have disregarded such use in at least one reported instance, but the practice is not uniform. Where we act for a claimant we target the survey at the defendant specifically, so that manufactured activity is visible as manufactured.
Scope of work
- Commercial Court proceedings, Central Jakarta and regional registries
- Route selection between deletion under Article 74 and cancellation under Article 76
- Survey design, commissioning and cross-examination
- Documentary evidence assembly: invoices, tax records, marketplace histories, BPOM, halal and POSTEL approvals
- Cassation and civil review before the Supreme Court
- Settlement, coexistence agreements and assignment
One decision shapes the rest
Whether to plead bad faith or non-use is settled before anything is filed, with the evidence in front of us. Against a squatter, non-use is usually the weaker instrument — and it is the one with a clock.
Facing a trademark dispute?
We act for claimants and registrants in deletion and cancellation proceedings, and on appeal.
ask@lexaeternalawfirm.com · WhatsApp +62 882-9613-7090
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