Ex Injuria Jus Non Oritur: Tempus Delicti and the Limits of Unauthorized-Use Evidence in Indonesian Trademark Disputes
5 min read
The Constitutive System and the Scenario of Use Tanpa Hak
Indonesia operates a constitutive, first-to-file trademark regime. Article 3 of Law No. 20 of 2016 on Marks and Geographical Indications (“UU MIG”) is categorical: “Hak atas Merek diperoleh setelah Merek tersebut terdaftar” — the right to a mark is obtained only after the mark is registered. Use alone, however prolonged or extensive, confers no proprietary right. This was the decisive break from the deklaratif (first-to-use) system Indonesia abandoned in 1992.
The constitutive principle generates a precise legal scenario that this article anatomises. A mark is validly registered in the name of one party (Owner X). A second party (User Y) — holding no registration, license, or other legal title (alas hak) — proceeds to use that same mark, or one essentially similar, in commerce. Y’s use is simultaneous with the continued validity of X’s registration. The question this article addresses is what such use is in the eyes of the law at the moment it occurs, and what consequences should — or should not — follow when Y later offers that very conduct as evidence of trademark use in civil proceedings.
The answer turns on a doctrine recently codified for the first time in Indonesian statutory history: tempus delicti, the time of the criminal act.
Tempus Delicti: The Clock That Matters
Tempus delicti descends from Dutch criminal-law doctrine carried into Indonesian law through the Wetboek van Strafrecht of 1918. Classical writers (Van Hamel, Pompe, Simons) and their Indonesian successors (Moeljatno, Sudarto, Andi Hamzah, Wirjono Prodjodikoro) developed three theories for fixing the moment: the theory of physical conduct (when the act is performed), the instrument theory (when the means employed operates), and the consequence theory (when the result materialises).
For the first time, the doctrine is now codified. Article 10 of the new Criminal Code (UU No. 1 of 2023, KUHP Nasional, effective 2 January 2026) provides: “Waktu tindak pidana merupakan saat dilakukannya perbuatan yang dapat dipidana” — “the time of a criminal act is the moment the act capable of being punished is committed.” Its Elucidation expressly recognises the three classical theories.
The decisive doctrinal point: criminality is assessed as at the tempus delicti. If, at the moment of commission, the actor’s conduct satisfied every element of the offence, no subsequent event — no later registration, no later license, no later acquiescence — can retroactively cleanse the act. The clock that matters is the clock of the deed.
Criminal Liability Under Article 100 UU MIG
Articles 100–103 UU MIG establish the criminal regime. Article 100(1) punishes any person who, “tanpa hak” (without right), uses a mark identical in its entirety (sama pada keseluruhannya) to another’s registered mark for similar goods or services in production or trade, with imprisonment up to five years and/or a fine up to IDR 2 billion. Article 100(2) addresses marks bearing persamaan pada pokoknya (similarity in essence). Article 103 makes these offences delik aduan — prosecutable only on the rightsholder’s complaint.
The pivotal element is “tanpa hak.” Read with the constitutive principle of Article 3, the chain of reasoning is exact: where Owner X holds a valid registration and User Y holds no alas hak, Y’s commercial use of the same or essentially similar mark for similar goods is, by definition, tanpa hak. At the tempus delicti — the very moment Y places the goods in commerce — every element of Article 100 may be satisfied. Registered IP practitioners openly recognise this: a mark used by a person who is not its registered owner, where that use conflicts with an existing valid registration, dapat dipidanakan — can be criminally prosecuted.
The Paradox: Unauthorized Use as Civil Evidence
The contradiction emerges when the very same conduct is examined a second time, in a civil forum. In cancellation actions under Article 74 (non-use), Articles 76–77 (bad faith), or in broader disputes over the validity of a mark, the unauthorized user is frequently allowed to adduce evidence of their own unauthorized commercial activity — invoices, sales records, promotional materials, social-media presence — to demonstrate “use of the mark” (penggunaan merek) for whatever purpose serves their case.
The result is doctrinally untenable. The very conduct that, measured at its tempus delicti against the existing valid registration, satisfied the elements of Article 100, is repackaged in the civil courtroom as the evidentiary foundation of a defended or competing right. A criminal act is laundered into a probative fact. The law thus appears, in one breath, to criminalise an act and, in the next, to reward it.
The Maxims That Speak
The paradox engages a cluster of venerable maxims, all expressing one policy — the law will not permit a wrongdoer to profit from the wrong:
Ex injuria jus non oritur (“no right arises from a wrong”) — unlawful conduct cannot of itself confer a valid legal entitlement.
Nemo commodum capere potest de injuria sua propria (“no one may take advantage of his own wrong”) — the civil-law expression of the same principle, treated as a salient tenet of equity.
Ex turpi causa non oritur actio, classically formulated by Lord Mansfield CJ in Holman v Johnson (1775): “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”
The common-law equity analogue, the unclean-hands doctrine, bars relief to a party whose inequitable conduct relates to the subject matter of the claim.
These principles reinforce — rather than displace — UU MIG’s own statutory bad-faith doctrine (itikad tidak baik). Article 21(3) bars registration by a bad-faith applicant; Article 77(2) permits cancellation without time limit where bad faith is present. A litigant who relies on use tanpa hak — conducted alongside another’s existing valid registration — to ground or fortify a right is, in substance, asking the court to overlook conduct that the statute’s own bad-faith provisions and the ex injuria maxim are designed to condemn.
The Necessary Distinction
Two scenarios must be carefully distinguished, and the failure to do so is the source of the present doctrinal confusion. First, where the user’s commercial activity conflicts with no existing valid registration, the use raises no criminal question and may legitimately be offered as evidence of good faith and genuine commercial activity. Second, where the use was carried out alongside an existing valid registration belonging to another party — the user holding no alas hak whatsoever — the use was, at its very tempus delicti, tanpa hak: an act criminally cognisable under Article 100. To treat the second category as equivalent to the first — to admit unauthorized use as if it were the same as lawful use — is to violate ex injuria jus non oritur in its plainest form. The deed cannot be both criminal at its inception and meritorious in its consequences.
Conclusion
The codification of tempus delicti in Article 10 of the new Criminal Code sharpens an analysis long latent in Indonesian doctrine: criminal liability attaches at the moment of the act, not at any later moment of registration or regularisation. Read together with the constitutive system of Article 3 UU MIG and the tanpa hak element of Article 100, the consequence is unambiguous. A person who uses in commerce a mark already validly registered to another, while holding no alas hak of their own, commits an offence the instant that use occurs — and the later course of the register does not undo it. When commercial courts subsequently treat that same conduct as legitimate evidence of trademark use, they generate precisely the contradiction that ex injuria jus non oritur, nemo commodum capere potest de injuria sua propria, the unclean-hands doctrine, and the statutory rule of itikad tidak baik are designed to forestall. A coherent Indonesian trademark jurisprudence is one in which the clock of the deed and the rule of the register tell, in the end, the same time.