Formulasi Parameter Itikad Tidak Baik dalam Gugatan Pembatalan Merek Terkenal untuk Menjamin Kepastian Hukum

Abstract

This article examines how bad faith should be formulated as an operational legal parameter in cancellation actions involving well-known trademarks. The issue is important because Indonesian trademark law has recognized special protection for well-known marks and has opened an exception to the limitation period for cancellation claims filed against registrations made in bad faith. However, in practice, claims are often trapped in formal debates over the first to file principle, while the proof of bad faith remains fragmented and highly dependent on judicial interpretation. This study uses normative legal research with statutory, conceptual, and case approaches. The analysis is grounded in the official Indonesian trademark regime, international instruments on well-known marks, and judicial practice that reveals the gap between the promise of protection and its implementation. The findings show that the main weakness does not lie in the absence of norms, but in the absence of a structured test linking the notoriety of a mark, the registrant’s prior knowledge, the pattern of registration, the commercial objective, and post-registration conduct. Therefore, this article formulates a five-part operational parameter of bad faith and recommends a contextual burden-shifting model so that cancellation actions involving well-known trademarks can be assessed more consistently, fairly, and predictably.