Indigenous Rights Committee Advocates for Awareness of the Importance of IR Protection

The Indigenous Rights Committee (IRC) is responsible for developing and advocating INTA’s policy on the impact of Indigenous rights (IR) and the enforcement of IR on trademark rights. The IRC does this by monitoring and analyzing developments in treaties, legislation, and implementation in various jurisdictions; proposing policy recommendations to the INTA Board; and interacting with IR organizations. 

The IRC is divided into three subcommittees: International Indigenous Rights and Policy Analysis (IIRIPA), Indigenous Rights Awareness & Analyses (IRAA), and Indigenous Rights Trademark Analyses Database Collection (IRTADC), each of which is engaged in a multitude of projects.

The IIRIPA Subcommittee is currently drafting a paper evaluating INTA’s position on IR, which will include suggested principles for legislation on IR and trademarks. The evaluation includes a review of the existing domestic legislation. This includes trademark and sui-generis legislation on IR and national databases; international treaties and conventions; regional treaties, declarations, and conventions; and resources from the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The Subcommittee, through a cross-committee collaboration with the Geographical Indications Committee, also plans to look at how the existing mechanism of geographical indications, and INTA’s position on geographical indications, could be used for the protection of IR.  

The IIRIPA Subcommittee regularly attends WIPO IGC to observe the text-based negotiations to finalize an agreement on an international legal instrument for the protection of traditional knowledge, traditional cultural expressions, and genetic resources. The IRC, in collaboration with the Pro Bono Committee, has also been working closely with WIPO on its Training, Mentoring and Matchmaking Program on Intellectual Property for Women Entrepreneurs from Indigenous Peoples and Local Communities. The program aims to encourage entrepreneurship, innovation, and creativity related to traditional knowledge and traditional cultural expressions by strengthening the capacity of Indigenous people and local community women entrepreneurs to make strategic and effective use of intellectual property tools in support of their entrepreneurial activities.  

The IRAA Subcommittee is reviewing various trademark offices’ examination procedures for IR-related considerations (e.g., those in New Zealand) with the aim of developing a draft of Examination Guidelines which would include recommendations for items such as the development of a national database similar to the United States Patent and Trademark Organization’s Native American Tribal Insignia Database. This would assist brand owners in carrying out checks and risk analyses when considering a trademark containing IR-related insignia.  

The IRAA Subcommittee is also reviewing various provisions of free trade agreements (FTAs) and other international trade agreements, like the Regional Comprehensive Economic Partnership (RCEP), which contains IR-related chapters, in order to develop model IR provisions for the better protection of IR in future FTAs, including through domestic legislation.  

The IRTADC Subcommittee has collected and collated recent survey data on IR-related laws in key jurisdictions and on various parameters, including protection, beneficiaries, scope of protection, and term of protection. The data will guide the development of an initial matrix, focusing on 10 jurisdictions: the Andean Community, Argentina, Australia, Brazil, Costa Rica, Mexico, New Zealand, Panama, the Philippines, and South Africa. The matrix will serve as a resource on IR for the wider INTA community.    

Additionally, the IRC also intends to initiate work on a Best Practices document for brand owners, which would assist them as an internal guideline prior to adoption of a trademark containing IR-related insignia. This may be particularly relevant for the fashion and entertainment industries. The document would indicate best practices for cross-searching IR against trademarks, including how to approach Indigenous peoples and local communities for benefit-sharing agreements, thereby avoiding violating IR. The document could also help create more awareness of the rights of Indigenous peoples regarding the protection of their traditional knowledge and cultural expressions.

Finally, the IRC is working on a proposal for a conversation on IR targeting several jurisdictions in Africa and Latin America 

The IRC projects highlighted above reflect a growing awareness and recognition of IR and its importance and will hopefully serve as guidance towards establishing an INTA Board Resolution on IR protection. 

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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