New Update to “Enforcement: An International Litigation Guide”

Published: April 1, 2018

The United Nations Declaration on the Rights of Indigenous Peoples specifically includes the right of indigenous peoples to “maintain, control, protect and develop their intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions.” Art. 31. Last year marked the ten-year anniversary of that declaration and the end of the first full term of INTA’s inaugural Indigenous Rights Committee. Previous iterations of the committee have existed for over a decade, including task forces and subcommittees, as part of other general committees, such as the Emerging Issues and Related Rights Committees. The transformation to a full committee is testimony to INTA’s engagement in this important area.

Assisting WIPO
As part of that commitment, in November 2017, INTA provided pro bono assistance to the Traditional Knowledge Division of the World Intellectual Property Organization (WIPO) in its holding of a capacity-building workshop in the Philippines. The workshop was aimed primarily at helping the indigenous peoples and local communities understand the IP system so that they can learn to make more strategic and effective use of IP tools, particularly trademarks.

The WIPO Traditional Knowledge Division supports indigenous and local communities by providing various platforms and tools to facilitate a better understanding of IP options so that these communities can make decisions regarding the proactive protection of their brands on goods and services. It also raises awareness of the defensive action that can be taken to protect names and symbols from misappropriation.

On behalf of INTA, Leslie Anne Cruz (Cesar C. Cruz & Partners Law Offices, the Philippines) participated in a seminar that provided practical legal advice to the indigenous T’Boli community, in response to the challenges they are currently facing in protecting their traditional cultural practices and producing their traditional garments.

The T’Boli Example
The Philippines is home to more than 40 different ethnic groups. Lake Sebu is home to one of the most well-known tribes, the T’Boli or Tagabili. The T’Boli continue to live traditionally, are instantly recognizable by their garments and adornments, and are famous for their complex woven fabrics and intricate beadwork. A traditional, sacred textile known as T’nalak is exchanged during marriages and is used as a covering during childbirth. The unique pattern of this cloth is inspired by the “dreams” of the weavers and is based on traditional knowledge and practices passed down through generations. It is reflective of a rich and diverse cultural heritage interlaced with collective imagination and cultural meaning. The tradition associated with T’nalak is considered to be the most characteristic of the T’Boli people and is synonymous with their natural history and cultural home of Lake Sebu.

Notwithstanding the registration of a collective mark, T’NALAK TAU SEBU, the T’Boli face a number of challenges, including sacrilegious use of their cloth by fashion designers, lack of attribution when authentic cloth is obtained,
use and exploitative pricing without any remuneration to the T’Boli people, and the commercial manufacture of T’nalak by others from areas other than Lake Sebu, where the cloth should originate.

The workshop participants included the T’Boli peoples and government and nongovernmental representatives from around the ASEAN region, including various IP offices. Ms. Cruz was able to provide some practical recommendations and answer questions associated with the T’NALAK TAU SEBU collective mark. Her experience highlighted the important role INTA has played in enabling peoples like that T’Boli to effectively exercise their IP rights.

The Challenges for Brands
Just as important as educating indigenous and local communities in the effective use of available IP tools is ensuring brand owner awareness associated with the appropriation of traditional cultural expressions, as exemplified by the T’Boli’s concerns.

The challenge for many brand owners is that traditional cultural expressions (TCEs), including names, signs, and symbols, are often accessible and known to the public. It is, therefore, often assumed that these artistic or cultural expressions of indigenous and local communities are available for use without regard to their source. This may lead consumers to mistakenly assume a connection between the business concerned and the relevant indigenous community whose TCEs are being used. Without understanding an indigenous community’s traditional ownership of TCEs and focusing only on trademark rights, businesses may end up inadvertently appropriating TCEs, and in some instances, causing potential offense and negative publicity for the brand because of misuse.

Coming Soon: Tips for Avoiding TCE Appropriation
To help brand owners navigate the pitfalls of possible TCE appropriation, the Indigenous Rights Committee, under the guidance of Jern Ern Chuah (Advanz Fidelis Sdn Bhd, Malaysia), has developed some helpful tips for INTA members on a range of matters to be considered when developing brands that may include TCEs. This list will be published under separate cover in an upcoming issue of the INTA Bulletin.

By respecting the intrinsic identity of these connections in developing their brands, brand owners can contribute to the ongoing sustainability of communities and their cultures and positively benefit from the United Nations Declaration on the Rights of Indigenous Peoples.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

© 2018 International Trademark Association