First published: House Marques, Issue 27, March 2013

Controversies triggered by perceived misuses of the cultural heritage of indigenous peoples in trade marks and branding are garnering increased visibility.  This article focuses on the current international debate concerning the extent of protection to be afforded indigenous peoples’ symbols, lore and other cultural expressions, and ways to minimize the risks associated with perceived misappropriations thereof.

The controversy 

Controversy over the misappropriation of indigenous people’s traditional knowledge, traditional cultural expressions and expressions of folklore may touch various industries including fashion, alcohol, sports, toys, music, tobacco, pharmaceuticals or cosmetics and may even touch government departments. The past year has had several high profile examples of the perceived misuse of Native American culture find significant echo in the media. These include a Victoria’s Secret model wearing a headdress during a fashion show, the No Doubt music bands ’cowboys and Indians' themed music video, and the use of the “Navajo” name and symbols on various goods by the clothing company Urban Outfitters attracting legal proceedings for misrepresenting the products’ origins as well as public ire.   Finding the right balance between legitimate inspiration and inappropriate use can be a difficult exercise for brand owners, but the first step for a brand owner to try and prevent potential misuse is to be aware of the risks.

The consequences

There are serious consequences for the misuse of indigenous people’s traditional cultural heritage, knowledge and expressions, even if inadvertent, to both brand owners and indigenous people. There are, of course, legal risks, as brand owners may be exposed to claims of indigenous communities based on IP rights, unfair competition, trade practices law, labelling laws and/or national laws where they may exist.

Reputational risk is very high, with potential impact on the general public, end consumers and/or shareholders’ opinions on the company’s business ethics notwithstanding public apologies that may subsequently be expressed. With the speed and scale of today's communication network, negative reaction may quickly reach a global audience even though the use may have been limited in time and/or to a specific territory.

There are also associated financial risks. Negative press may kill a product or campaign, resulting in lost sales and corrective advertising expenses, and may even adversely affect the company’s stock price. From the concerned indigenous people’s side, unauthorized use and commodification of cultural heritage often results in human consequences far beyond potential loss of opportunities or profits. It can notably be perceived as a serious offence to the peoples' culture, and tradition, as well as obligations to protect and control heritage and knowledge with the potential of destroying both cultural integrity and community.

The challenge

There are reportedly 5,000 existing indigenous communities in 70 countries representing 350 million people (Maaka, R and Fleras, A, The Politics of Indigeneity, 2005 University of Otago Press, page 29). This reality, combined with the international activities and reach of many companies, increases the risk of inadvertent appropriation of the expressions of indigenous people used to denote their traditional culture and folklore including legends, words, signs, names, symbols, songs and instrumental music, dances, plays, ceremonies, rituals, games, art, handicrafts and architecture.

While it would seem impossible to have an exhaustive knowledge of all the different indigenous cultures, a brand owner can take some simple steps during the clearance process to minimise potential risks. These may include:

  • Raise the awareness of the issue with the main actors in the creative process (marketing, advertising agencies) as well as their legal partners;
  •  Enquire as to source of inspiration;
  •  Check on the internet if the sign refers directly or indirectly to an indigenous community;
  •  Integrate questions of possible indigenous rights claims into a clearance check list for those reviewing proposed use;
  •  Ask outside counsel if the searched sign is likely to be offensive to local communities or have other connotations when outsourcing availability searches;
  •  Organise a review of the planned use by different functions (IP, commercial law, marketing, corporate affairs) and at different levels (local, regional, central).

Diane Silve, Philip Morris