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 trade-mark law.

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 be trade-marked?

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 geographical boundaries.  

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 threedimensional 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” element?  

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 mixed success.  

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 reasons.  

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.