Tuesday, February 9, 2016

Ikea's widespread trademark use in Indonesia is not enough use

Image result for ikea jakartaIkea's trademark loss has been widely reported the last week or so. Full background is here. The Swedish company hasn't suffered quite the major loss that has been reported in the media, and it doesnt need to reband its shop, but the legal details behind it are interesting. The case concerned IKEA's marks in classes 21 and 22 (which cover mainly kitchen and housewares). Ratania Khatulistiwa a local furniture company sought to cancel these marks for non use in Indonesia.
The reason for the Supreme Court finding against Ikea was that they hadn't used the IKEA marks on goods in those classes for a 3 year period. The relevant provision of the Trademark Law can be read two ways. Firstly that the mark hasn't been used for the last 3 years (before a case is filed). But secondly that there is a 3 year period from a particular date to a second date, 3 years afterwards when no use took place. So with Ikea's marks 3 years went and they later started use in a subsequent year. The court stated that there was still a 3 year period of non-use. A dissenting judgment (which is not common in Indonesia) indicated that the reverse should be the case, that the period prior to the court case was all that mattered.
What this means is that any period of 3 years of non use potentially makes your marks vulnerable and that subsequent use does not 'cure' this. A harsh judgment perhaps, but perhaps within the interpretation of the law. Trademark owners who are not using their mark, but then start using them are going to need to consider additional mitigation steps to avoid this situation.

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