The Constitutional Court has handed down Decision Number 144/PUU-XXI/2023, which introduces significant adjustments to the non-use period for registered trademarks. The ruling extends the non-use period from three to five consecutive years, a change the Court believes will offer substantial benefits to Small and Medium Enterprises (SMEs), a vital component of the Indonesian economy.
The decision acknowledges the challenges SMEs face, especially during force majeure events, by providing them with additional time to utilise their registered trademarks in production. This move is designed to prevent the premature cancellation of trademarks due to unavoidable disruptions.
Notably, the Court emphasised that the adjustment to the non-use period is not meant to overlook the rapid advancements in information and communication technology. Trademark owners are encouraged to leverage online trading platforms to maintain the active use of their trademarks, thereby circumventing the non-use principle and preserving their registration status.
To ensure the integrity of the process for deleting non-use trademarks, the Court highlighted the necessity of supporting such decisions with robust data. This includes conducting clear, measurable, and transparent surveys by qualified professionals to produce accountable results. This meticulous approach is part of the government’s broader effort to foster a competitive business environment as envisioned in the Trademark Law.
Therefore, Article 74, paragraphs (1) and (2) of the Trademark Law will be amended as follows*:
- The deletion of a registered Mark may also be submitted by a third party who has an interest in the form of a lawsuit to the Commercial Court based on the ground that the Mark has not been used for 5 (five) consecutive years in the trade of goods and/or services from the registration date or last use.
- The reason for an unused Mark, as referred to in paragraph (1), is invalid in the event of:
- import ban;
- temporary prohibition that is related to the permit for the distribution of goods that use the relevant Mark or a decision from an authorised party; or
- other similar prohibitions, including a force majeure established with Government Regulation.
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*) unofficial translation
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