By Elizabeth Yunita Krisnawati | Associate

The term “Trademark” under Article 1 of Law Number 15 of 2001 concerning Trademarks, as lastly amended by Law Number 20 of 2016 concerning Trademarks and Geographical Indications (“TGI Law”), is defined as a sign in the form of an image, logo, name, word, letter, number, or color composition, whether in two-dimensional or three-dimensional form. A trademark serves to distinguish goods and/or services produced by individuals or legal entities in the trade of goods and services.

Trademark Registration is an essential step for Trademark owners to obtain protection for their Marks. However, Trademark rights will only be granted by the Directorate General of Intellectual Property (“DGIP”) if the Trademark application is filed in good faith. In addition, Applicants must ensure compliance with the applicable legal requirements in order for their Trademark applications to proceed to registration.

In practice, even though there are comprehensive provisions governing the registration of Trademarks under the TGI Law, it is not uncommon for Trademark applications to  submit Trademarks that are identical or similar to previously registered trademarks. Such circumstances often result in the rejection of Trademark applications on the grounds of similarity to previously registered Marks. Furthermore, the TGI Law stipulates that, under certain conditions, registered Trademarks may be deleted or revoked. The deletion of a registered Trademark can be initiated by the Trademark Owner, the Ministry of Law through the DGIP, or by a Third Party.

With respect to deletion initiated by the Trademark owner, Article 72 of the TGI Law stipulates that a request for deletion of a registered Trademark may be submitted by the Trademark owner directly or through its authorized representative. Such deletion may be processed through the DGIP Trademark portal by filing an online (https://merek.dgip.go.id) post-registration application for the recorded of Trademark deletion. Documents generally required for such application include the Owner’s Information, the Trademark Certificate, a Power of Attorney (if represented by an Intellectual Property Consultant), and a Written Request for Deletion of the Trademark Registration.

A registered Trademark may also be deleted by the Ministry of Law through the DGIP. This may occur where the registered Trademark is found to be identical or substantially similar to another mark; contrary to the state ideology, prevailing laws and regulations, morality, religion, decency, or public order; or similar to traditional cultural expressions, intangible cultural heritage, or names and logos that have become part of a longstanding tradition.

The procedure for the Ministry of Law through the DGIP is further regulated under Government Regulation Number 90 of 2019 concerning Procedures for Application, Examination, and Appeal Resolution before the Trademark Appeal Commission (“GR 90/2019”). Before the deletion of a registered Trademark under the Ministry of Law through the DGIP, an examination and recommendation from the Trademark Appeal Commission is required, confirming that the deletion requirements have been met, as stipulated in Article 31 of GR 90/2019.

A registered Trademark may also be deleted in the form of a lawsuit filed by a third party in the Commercial Court on the grounds that the Trademark has not been used for 3 (three) consecutive years in the trade of goods and/or services from the date of its registration or its last use, regardless of the reason, except where such non-use results from import restrictions, temporary marketing authorization prohibitions, or other similar restrictions established by Government Regulation.

A Deletion Action brought by a Third Party cannot be filed by just any person. The Third Party must demonstrate a legitimate legal interest in the deletion of the Trademark, such as a business actor seeking to register its own Trademark but being obstructed by an existing registered Trademark that is no longer in use, a party intending to use a similar mark, or another Trademark owner who has suffered prejudice as a result of the registration. Evidence commonly required to support such Action includes the Third Party’s Identification Documents, a copy of the Registered Trademark Certificate, market survey reports concerning the circulation of goods and/or services under the registered Trademark, witness statements from business actors, distributors, or consumers, product catalogs, and proof of sales through online marketplaces.

Significant changes regarding Trademark deletion actions by Third Parties have arisen following Constitutional Court Decision Number 144/PUU-XXI/2023 (“Constitutional Court Decision 144/2023”). In this decision, the Constitutional Court held that a deletion action may only be filed where the Trademark has not been used for 5 (five) consecutive years. Furthermore, the Court expanded the exception relating to other similar restrictions to include force majeure circumstances established by Government Regulation. As a result, Trademark owners are afforded a longer period of non-use before their Trademarks may be challenged for deletion by interested parties.

A Trademark deletion action must be filed with the Commercial Court having jurisdiction over the defendant’s domicile. Pursuant to Article 85 of the TGI Law, Trademark deletion proceedings must be completed within 90 (ninety) calendar days from the date the case is assigned to the panel of judges and may be extended for a maximum of 30 (thirty) calendar days with the approval of the Chief Justice of the Supreme Court.

Any objection to the deletion of a Trademark, whether initiated by the Ministry of Law through the DGIP or by a Third Party, may be challenged through a cassation appeal to the Supreme Court. Any deletion of a registered Trademark, whether initiated by the Trademark owner, the Ministry of Law through the DGIP, or a Third Party, must be recorded and published in the Official Trademark Gazette. Upon deletion, the Trademark owner loses its Exclusive Rights over the Trademark and is no longer entitled to legal protection for the Trademark. Moreover, the deletion of a registered Trademark may create an opportunity for other parties to apply for registration of the deleted Trademark.

For further information or queries, kindly reach out to our partner Zidny Assegaf (z.assegaf@asentya.com) or Raditya Rahmadhan (r.rahmadhan@asentya.com).

Disclaimer:

This insights is prepared for general information purposes and should not be taken as a legal advice. Asentya Legal Advisor bear no responsibility due to losses arising from the use of this general information.

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