Well-known trade marks, foreign investment and local industry : a comparison of China and Indonesia

Strengthened protection for well-known trade marks in accordance with the TRIPS Agreement is an important issue for developing countries, which has led to trade pressures from industrialised nations in the past. ‘Trade mark squatting’, referring to the registration in bad faith of foreign well-known marks in order to sell them back to their original owners, is a much discussed phenomenon in this context. This article outlines the history and development of well-known trade marks and the applicable law in China and Indonesia. It looks not just at foreign and international brands subjected to ‘trade mark squatting’, but also at how local enterprises are using the system. Rather remarkably in view of the countries’ turbulent histories, local well-known marks have a long history and are well respected for their range of products. They are not normally affected by the ‘trade mark squatting’ phenomenon and are rarely the subject of disputes. Enhanced protection under the TRIPS Agreement is especially relevant for international brands and the article shows the approaches in the two countries. In China, government incentives assist the proliferation of nationally well-known and locally ‘famous’ marks. In Indonesia, lack of implementing legislation has left the matter of recognition to the discretion of the courts.