Minister of Law of the Republic of Indonesia Regulation No. 5 of 2026 on Trademark Registration (“Permenkum 5/2026”) came into force on 23 February 2026 and replaced Minister of Law and Human Rights Regulation No. 67 of 2016, as amended by Minister of Law and Human Rights Regulation No. 12 of 2021. One of the notable changes is the express separation between the transfer of a trademark application and the transfer of rights over a registered trademark.
While this change may appear straightforward, it is conceptually significant because it establishes a distinction that was previously not expressly reflected in the regulatory framework governing trademark transfers, particularly where a transfer takes place while the registration process is still ongoing.
The Perspective of the Trademark Law on Trademark Transfers
Law No. 20 of 2016 on Trademarks and Geographical Indications, as last amended by Law No. 6 of 2023 concerning the Enactment of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law (“Trademark Law”), has in fact allowed a transfer to take place while a trademark application is still pending. Article 41 paragraph (8) provides that a transfer of rights over a trademark may be carried out during the application process. However, when read systematically alongside other provisions of the Trademark Law, this provision creates a construction that is not entirely consistent.
Article 1 point 5 in conjunction with Article 3 of the Trademark Law defines rights over a trademark as exclusive rights granted by the state to the owner of a registered trademark. This implies that rights over a trademark arise only after the registration process has been completed and the trademark has been registered with the Trademark Office. This is further reinforced by Article 41 paragraph (1) of the Trademark Law, which provides that the object of a transfer is the rights over a registered trademark.
The issue, however, arises from the construction of Article 41 paragraph (8) itself, which provides:
“The transfer of Rights over a Trademark as referred to in paragraph (1) may be carried out during the Trademark registration Application process.”
When Article 41 paragraph (8) is interpreted systematically within the framework of the Trademark Law, this construction appears problematic because it combines two legal regimes that should conceptually be distinguished: the transfer of rights over a registered trademark and the transfer of a pending trademark application.
Minister of Law and Human Rights Regulation No. 67 of 2016 Did Not Yet Separate the Two Transfer Regimes
This issue was not fully resolved under Minister of Law and Human Rights Regulation No. 67 of 2016, as amended by Minister of Law and Human Rights Regulation No. 12 of 2021.
Article 38 of Minister of Law and Human Rights Regulation No. 67 of 2016 continued to conflate the transfer of a trademark application with the transfer of “rights over a trademark” and used the same terminology, namely “application for recording the transfer of rights over a registered trademark,” for transfers occurring both during the application stage and after the trademark had been registered.
Permenkum No. 5 of 2026: Separating the Two Transfer Regimes
Permenkum No. 5/2026 subsequently clarifies this framework by establishing two distinct transfer regimes. Articles 22 to 30 of Permenkum No. 5/2026 govern the transfer of pending trademark applications, while Articles 63 to 69 govern the transfer of rights over registered trademarks.
This separation provides a clearer and more consistent legal framework: before a trademark is registered, the object being transferred is the application; after registration, the object being transferred is the rights over the trademark.
At the application stage, what is transferred is not an existing right over a registered trademark, but rather the applicant’s legal position as the party entitled to continue the process of obtaining rights over the trademark. Conversely, once the trademark has been registered, the object of the transfer is the rights over the trademark itself.
This construction makes Permenkum No. 5/2026 more consistent with the fundamental principle that rights over a trademark arise only upon registration.
Legal Consequences
The separation of these two transfer regimes also carries distinct legal consequences.
Because a transfer of a trademark application results in the transfer of the former applicant’s position to the transferee, the transferee becomes the party responsible for continuing the trademark registration process. Accordingly, if, following approval of the transfer, an opposition or proposed refusal arises, the transferee will be the party legally positioned to respond to and address the proceeding.
The documentary requirements under each regime also differ. For a transfer of a pending application, the required documents relate to the pending application and the legal basis for the transfer. In contrast, for the transfer of rights over a registered trademark, the applicant is required to provide documents evidencing the status and existence of the trademark, such as the trademark certificate or an official extract of the registered trademark, together with the documents evidencing the transfer.
Accordingly, Permenkum No. 5/2026 does more than merely change the terminology. It clarifies what is actually transferred under each regime and the legal consequences arising from that transfer. While the trademark remains pending, what is transferred is the application together with the applicant’s legal position in the process of obtaining trademark rights. Once the trademark has been registered, the transfer concerns the rights over the registered trademark.
