Aboriginal traditions, cultural practices and skills are guarded
from misinterpretation and degradation by being carefully and
respectfully handed down from generation to generation. While this
keeps those Traditional Cultural Expressions (TCEs) alive, it
doesn't necessarily protect them from inappropriate use.
However, there may be a way to further protect TCEs through
The World Intellectual Property Office (WIPO) defines TCEs as
"music, art, designs, names, signs and symbols, performances,
architectural forms, handicrafts and narratives". TCEs can
refer to knowledge that is sacred and ancient, or skills and
practices that have been handed down generationally. But can TCEs
Typically, a trade-mark is a mark that has been adopted (by its
use in association with a product or service) for the purpose of
distinguishing it from the products or services of others. Through
their use, trade-marks attract attention, generate wealth, hold
goodwill, are registrable as property, and can transcend
In the past, technology limited the forms of trademarks to
words, symbols or designs that could be depicted on surfaces.
Increasingly however, legal jurisdictions are extending protection
to three-dimensional marks and colour marks, as well as to marks
comprising sounds, holograms, scents, moving images, textures and
even tastes! Many of these new forms of trade-marks are referred to
as "non-traditional" trade-marks. This ever-widening
definition of a trade-mark opens doors for TCEs to be recognisable
as "marks", but what about the "trade"
Generally, most countries and economic unions require that the
possession of a product must transfer by way of sale in order for a
mark to be used in association with goods. Thus, the marked product
must be able to be traded or sold in order qualify as a
"trade" mark. However if a TCE was considered more of a
service, it's understood that not all service marks exist for
commercial purposes, many actually represent deeply rooted social
values. For example, the names of cherished non-profit institutions
can be trade-marks.
Another challenge to using trade-marks to protect TCEs is that
such registration requires a declaration of the time of adoption
– when the TCE became a trade-mark. If the TCE is ancient,
the determining date of adoption might be a problem. But there may
be alternatives for TCE protection.
In response to growing international concerns on this topic, the
WIPO created the Intergovernmental Committee on Genetic Resources,
Traditional Knowledge and Folklore. This Committee has been working
steadily to draft a treaty for protection of TCEs, as well as
Traditional Knowledge and Genetic Resources. The resulting texts of
their work will be submitted to the 2012 WIPO General Assembly
(October), where it will be decided whether or not to convene a
diplomatic conference to conclude treaty negotiations.
Many countries and geographical regions have attempted to
develop laws that recognise the existence of TCEs and the need to
protect them from unauthorized use or outright misappropriation.
Africa, New Zealand, the US, Panama, a consortium of Pacific Island
countries, and a South American trade organization (called the
Andean Group) have all taken steps to create such legislation, with
Of these, perhaps the most practical intermediate solution is
the one from the US, where registers and databases have been
developed to help prevent trade-marks from being adopted and
registered where they conflict with known TCEs. It is an imperfect
system, as registration is not mandatory. However, this does
suggest that as a starting point, it may be helpful to have
domestic registers for the TCEs of indigenous peoples for defensive
Here in Canada there is no perfect protection for TCEs; however,
like most eventual remedies, it starts with awareness of the
potential issues. Should you have any questions or concerns about
the protection or use of a TCE for commercial or other purposes,
please contact the writer.
Originally published in BLG's Team North Newsletter,
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