The Petitioner’s legal counsel, James Erikson Tamba, conveying the revisions to the petition at a judicial review hearing of Law No. 20 of 2016 on Trademarks and Geographical Indications, Tuesday (11/28/2023). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 74 of Law No. 20 of 2016 on Trademarks and Geographical Indications (Trademark Law) on Tuesday, November 28, 2023 to hear the revisions to the petition. The Case No. 144/PUU-XXI/2023 was filed by Ricky Thio, an MSME (UMKM) entrepreneur who owns the trademark “HDCVI & LOGO,” which has been registered with the Ministry of Law and Human Rights.

The Petitioner’s legal counsel James Erikson Tamba mentioned several revisions to the petition, including the elaboration of the constitutional loss, and the petition’s background regarding the regulation of trademark rights based on international provisions that is the basis of non-use regulations, which means sans trademark. The Petitioner further outlined several international conventions in several countries and their analysis, such as those in Singapore, Germany, England, Switzerland, and Norway.

“These five countries apply non-use [regulations] for a period of five years, while in Indonesia it is only three years. Furthermore, the Petitioner also provides an overview that non-use regulations are not mandatory and are optional for countries that have ratified it. Indonesia is a sovereign country, and in this case, its special economic character is focused on SMEs,” Tamba said before Constitutional Justices Enny Nurbaningsih, Manahan M. P. Sitompul, and Arief Hidayat in the plenary courtroom.

Also read: Provision on Trademark Removal Challenged

The Petitioner challenges Article 74 of the Trademark Law on the removal of trademarks. The preliminary hearing for the case took place on Wednesday, November 15. At the hearing, he and legal counsel James Erikson Tamba said that the Trademark Law intended to protect MSMEs are supposed to take into account the characteristics of domestic MSMEs.

The Petitioner argues that the legal provisions of Article 74 paragraph (1) of the Trademark Law on the removal of trademarks that are not used in trade for three years is highly detrimental to MSMEs that have limited capital and are subject to potential changes at any time. Therefore, if circumstances arise that prevent MSMEs from producing, such as the COVID-19 pandemic or economic crises, their trademark rights may be revoked due to the enactment of said article.

In the petition, the Petitioner explains that the provision on the removal of trademarks in Article 74 paragraph (1) of the Trademark Law is highly discriminatory and detrimental to MSMEs. He asserts that it can be used as a tool that promotes unfair business competition and kill MSMEs, especially when foreign businesses utilize this provision to revoke the trademarks of domestic MSMEs, as the Petitioner experienced.

In addition, the Petitioner considered Article 74 paragraph (1) of the Trademark Law contrary to the principle of intellectual property rights that emphasize innovation. He argues that Article 74 of the Trademark Law can be used by any business actor by using an institution that does not have the competence to determine whether a trademark is being used or not, to sue competing business owners of trademark rights. Consequently, trademark owners can be sued continuously and experience loss of time and energy in the process. Thus, the Petitioner believes that Article 74 of Law No. 20 of 2016 is contrary to Article 28D paragraph (1), Article 28H paragraph (4), and Article 33 paragraph (4) of the 1945 Constitution and should be declared not legally binding.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Andhini S.F.
Translator  : Najwa Afifah Lukman/Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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