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Indigenous Cultures and Trademarks

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Indigenous Cultures and Trademarks WTR_39 Paginated - 2_WTR 28/08/2012 13:48 Page 49 Feature By Tracey L Mosley Getting expressive – indigenous cultures and trademarks As efforts continue to develop protection for traditional cultural expressions, brand owners need to ensure they are tracking the latest legal developments as they develop new trademarks and brands Imperfect for the task though they may be, the basic concepts of trademark law may provide a route towards recognition and protection for the traditional cultural expressions (TCEs) of indigenous peoples. TCEs, along with traditional knowledge (ie, cultural practices and knowledge handed down from one generation of a group of indigenous people to the next) and genetic resources (ie, natural resources located on, above or below the land traditionally inhabited by indigenous peoples), have increased in profile due to their morally sensitive nature and the prospective changes that their recognition and enforcement may bring to IP laws. This article addresses TCEs in the context of trademark law. Defining TCEs and trademarks Firmly defining ‘TCEs’ (which are sometimes referred to as ‘expressions of folklore’) is impossible because they represent knowledge that can be sacred and ancient, as well as being rooted in skills or practices handed down inter-generationally, not for the purpose of personal or commercial gain, but rather to sustain identity and support family and community. The World Intellectual Property Office (WIPO) describes TCEs as including “music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives” – parts of that description easily call to mind trademarks. In its narrowest legal interpretation, a ‘trademark’ is a mark that has been adopted by its use in association with a product or service for the purpose of distinguishing that product or service from the products or services of others. In practice, however, trademarks attract attention, generate wealth, hold goodwill, are registrable as property and can transcend geographic boundaries. Trademarks thrive not on intergenerational inheritance or communal links, but www.WorldTrademarkReview.com October/November 2012 World Trademark Review 49 WTR_39 Paginated - 2_WTR 28/08/2012 13:48 Page 50 Feature: Indigenous cultures and trademarks on the strategic choices of their owners. knowledge in the public domain, WIPO created the Intergovernmental Is it possible that there are places where TCEs and trademarks Committee on Genetic Resources, Traditional Knowledge and Folklore, can overlap? Places where TCEs can be recorded, used as trademarks which has worked steadily to draft a treaty for the protection of without losing their sacred nature and protected from misuse and genetic resources, traditional knowledge and TCEs. Late in 2011 the misappropriation? committee’s focus turned from theoretical discussions towards text- Just what can constitute the subject of a trademark changes based negotiations, with the aim of creating one or more international constantly. While in the past, technology limited the forms of treaty documents. The resulting texts are to be submitted to the 2012 trademarks to words, symbols or designs that could be depicted on WIPO General Assembly, which will decide whether to convene a surfaces, now one jurisdiction after another has extended protection diplomatic conference. Diplomatic conferences typically serve the to three-dimensional (3-D) marks and colour marks, as well as to purpose of concluding treaty negotiations. marks comprising sounds, holograms, scents, moving images, While awaiting developments on the prospective WIPO treaty, textures and even tastes. various nations and regions have attempted – in some cases successfully It is a curious coincidence that the many new forms of – to develop laws that recognise the existence of TCEs and the need to trademark are spoken of as ‘non-traditional’ trademarks. Are there protect them from unauthorised use or outright misappropriation. TCEs that are non-traditional in form when considered as potential In 2010 the African Regional Intellectual Property Organisation trademarks? Quite possibly, given that TCEs can taken the form of (ARIPO) adopted the Swakopmund Protocol on the Protection of songs or spoken words (sound marks), pre-literary forms (3-D Traditional Knowledge and Expressions of Folklore. The language of marks), carved objects (texture marks), prepared comestibles (taste the protocol is confident and assertive, stating that the ARIPO marks) and dances (motion marks). countries (Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, The ever-widening definition of a ‘trademark’ increasingly opens Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Somalia, the door to seeing TCEs as recognisable as the ‘mark’ part of a Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe) are trademark – but what of the ‘trade’ element? “convinced that traditional knowledge, traditional cultures and Whether a party must conduct trade under a mark to effect use folklore are diverse frameworks of ongoing innovation, creativity of a trademark in its own country mostly rests on the definition of a and distinctive intellectual and creative life that benefit local and ‘trademark’ used in that country. traditional communities and all humanity”. The protocol also speaks It can be difficult to escape the notion that the possession of a of being “mindful” of the need to acknowledge and protect the product must transfer by way of sale in order for a mark to be used dignity and integrity in the culture and values of traditional in association with goods. There may be more latitude in using a communities. Importantly, the protocol desires “to preclude the mark for services, where advertising the services may be sufficient, grant and exercise of improper intellectual property rights in… as opposed to someone actually purchasing a service. After all, not expressions of folklore and works and products derived therefrom”. all service trademarks exist for commercial purposes. Many The protocol requires contracting states to provide “adequate represent deeply rooted social values. The names of cherished non- and effective legal and practical measures” to ensure that a relevant profit institutions can be trademarks. In many countries, taxpayer- community can prevent, among other concerns, “the acquisition or funded social programmes are known universally by a trademark. exercise of intellectual property rights over the expressions of Most charities would struggle if existing and potential donors could folklore or adaptations thereof”. Subject to an expression of folklore not separate them, by their trademark, from other causes. remaining in use in accordance with the practices of the community Each jurisdiction is different; holders of TCEs must assess the that created it (even if a specific creator cannot be identified), the registrability of a TCE as a trademark under their own national laws protocol holds the expression of folklore to be enduring. or those of any other jurisdiction where they desire registration. The Pacific Model Law 2002 was not a law imposed by a nation; Trying to establish whether a TCE is a trademark and in use, rather, it was a means by which member countries of the Secretariat particularly for the purposes of registration before a national of the Pacific Community – an international organisation which trademark office and certainly for enforcement against misuse by works to assist Pacific Island countries to achieve sustainable unauthorised users, calls into question the idea of adoption – that is, development – could develop and enact their own laws for the is it possible to pinpoint the moment in time when a TCE became a protection of traditional knowledge and expressions of culture. The trademark? If the TCE is ancient (ie, if it has been handed down Pacific Community comprises 22 Pacific Island nations: American through multiple generations), it may be difficult or impossible to Samoa, the Cook Islands, the Federated States of Micronesia, Fiji, establish the date of creation or adoption, even though the TCE has French Polynesia, Guam, Kiribati, the Marshall Islands, Nauru, New been transferred through the generations by way of inheritance. Caledonia, Niue, the Northern Mariana Islands, Palau, Papua New However, as indigenous peoples innovate, it may be possible to Guinea, the Pitcairn Islands, Samoa, the Solomon Islands, Tokelau, present the results of such creativity to the marketplace and to have Tonga, Tuvalu, Vanuatu and Wallis and Futuna, plus Australia, new TCEs carry both sacred and trademark characteristics, allowing France, New Zealand and the United States. for their potential registration as trademarks. Extensive guidelines support the model law to assist Pacific While the issue may be finding the capacity, on a jurisdiction-by- Community nations in developing their own national legislation to jurisdiction basis, to find ways to register TCEs as trademarks, or to protect traditional knowledge and cultural expressions, including prevent unauthorised use or registration of a TCE by aligning a TCE through registers and databases of heritage knowledge, and laws with trademark protection, for some aboriginal peoples imposing prohibiting the misappropriation and misuse of TCEs. the limits of trademark statutes on their TCEs may be insupportable. While created within an IP context, from the outset the aim of If so, are there alternatives? the model law was to ensure that the recognition and protection of TCEs would
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