WIPO’s Wend Wendland on Proactively Using Trademarks to Protect the Rights of Indigenous Peoples

Wend Wendland, WIPO (Switzerland)

Indigenous peoples and local communities throughout the world have made notable strides in recent years to protect their culture, heritage, and traditions.

In an interview with the INTA Bulletin, Wend Wendland, director, Traditional Knowledge Division, World Intellectual Property Organization (WIPO), discusses some of these achievements and how WIPO and INTA are working together to equip Indigenous peoples and local communities with the information, skills, and legal services support to protect their brands and grow their businesses.

In a previous interview with the INTA Bulletin, you noted that many Indigenous peoples and local communities hold a negative perception of intellectual property (IP), and that policymakers, officials, rights holders, and practitioners need to address this. What progress has been made in this regard over the past few years? Do any success stories spring to mind?
There is still some way to go in narrowing the gap between Indigenous peoples and local communities, on the one hand, and the IP establishment on the other. Most inhabitants of this planet are Indigenous or belong to a local community as that term is broadly understood. Very often, they are the most vulnerable and marginalized. They are also immensely innovative and creative. Justifiably proud of their cultural heritage, they remain mystified that the IP system can sometimes allow elements of their heritage to become the exclusive property of third parties without any acknowledgment or benefit-sharing.

However, some progress is being made in narrowing the gap. Sports teams, clothing companies, and other enterprises have begun scrubbing Indigenous words, names, and symbols from their names if the names are regarded by Indigenous peoples as demeaning or derogatory or imply a link with the community when this is not actually the case.

Indigenous peoples have been demanding this for decades. Why is it happening now? Perhaps the shift is being propelled by greater societal awareness of the inequalities, racism, and misogyny that still permeate many societies. The “Black Lives Matter” and #metoo movements are also playing a role. Inspired by these movements, societies strive to be more inclusive, tolerant, equitable, and diverse, and consumers increasingly demand authenticity and sustainability in the products they buy. In this context, branding that uses Indigenous names, words, and symbols without due authorization and acknowledgment is less and less tolerated by consumers, sponsors, and investors.

In September, a ski resort in Lake Tahoe [Nevada, USA] changed its name to remove a racist and misogynistic slur after consultations with local Indigenous groups. This is an example of what we could call preventative or “defensive” action: preventing the misappropriation and misuse by third parties of Indigenous and local community words, names, and other indications.

On the positive side—that is, the proactive use of the trademark system by Indigenous and local community entrepreneurs—we are working hard to empower those entrepreneurs who wish to use the trademark system, with the necessary information, skills, and legal services support. We do so through the Indigenous and Local Community Entrepreneurship Program, complemented by Promote and Protect your Culture: A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities, tips for communities on online trading and a series of practical-oriented webinars for Indigenous peoples and local communities. We are thrilled that INTA is a lead partner in this program.

The program, which currently addresses women in particular, comprises two phases: training and mentoring. In the training phase, the trainees receive practical information on how the IP system functions and on other relevant topics such as branding and marketing, establishing cooperatives, project management, Indigenous entrepreneurship in the digital economy, digital storytelling, and leadership. In the mentoring phase, the trainees are guided by a mentor for up to a year in handling the IP aspects of their businesses or projects.

So far, 10 women entrepreneurs have begun to take steps to protect their brands’ trademarks through this program. This includes Lucille Anak Awen Jon, a young jewelry designer from the Bidayuh Community in Malaysia. She is working with WIPO and INTA to brand her tradition-based products. Lucille’s designs not only sustain her community’s heritage, but also provide sustainable income for her people.

Another beneficiary of WIPO’s program is Theresa Secord, a Penobscot basket weaver and entrepreneur from Maine in the United States who sells her baskets under the brand WIKEPI BASKETS. She is in the process of applying to protect both the name and logo used to brand her baskets, with the consent and involvement of her community.

For some time now, the Sámi people in Finland, Norway, Russia, and Sweden have used registered collective trademarks to identify and preserve traditional and authentic Sámi handicrafts. For the Sámi, IP helps to keep their culture alive.

Christina Hætta, head of Norway’s Sámi Council Cultural Unit, told us, “We wish to give the consumer a good experience and a sense of security that they have chosen a Sámi-produced product, or ‘duodji.’ The [marks] will also raise interest and tell a story about the product and the Sámi culture, where we ourselves are the authors.”

In 1996, the Cowichan tribe, living in British Columbia in Canada, registered a certification mark, COWICHAN. The mark may be used by those who have been certified as using traditional tribal methods to hand knit sweaters and other clothing items.

Likewise, in Kenya, a community of sisal basket weavers is the proud owner of the collective mark TAITA BASKET. Dorcas Gombe Mwambeta, of Kenya’s Taita Basket Association, told us “[The collective mark has led to] a lot of changes. We’ve increased the sales [and] the quality has improved, because when you weave a basket, you should meet the standard of the association.”

Lastly, Florence Jaukae Kamel, a bilum designer and weaver from Papua New Guinea, is also a current participant in WIPO’s program. With WIPO’s and INTA’s support, she is taking steps to protect the name of her business as well as the name of a festival she has established dedicated to women’s practice of bilum weaving.

There are frequent examples from around the world of brands that incorporate Indigenous creativity (including words, imagery, and iconography) in their own brands and IP, ultimately misappropriating the Indigenous community’s traditional cultural expressions and traditional knowledge. How can brands collaborate with Indigenous communities in a respectful and mutually beneficial way? Do you have any favorite examples?
Respect and understanding would be good first steps. Brands should respect and try to understand the cultures and the communities they are dealing with. This can lead to relationship-building through dialogue—representatives of industry and Indigenous peoples and local communities meeting together to share perspectives, dispel misunderstandings, build trust, and begin a conversation around practical steps toward avoiding misappropriations and building mutually beneficial and equitable collaborations. Building these kinds of cross-cultural collaborations is not easy. At WIPO, as a neutral party, we try to facilitate such dialogues and relationship-building.

In my view, there are immense social, cultural, and economic benefits to be gained from brand owners and Indigenous and local communities working together in mutually respectful ways that are inspired by the values of equity, inclusiveness, tolerance, sustainability, authenticity, and diversity, which I referred to earlier.

For brands, building trust and mutually beneficial relationships with communities has as much to do with avoiding the costs of making a mistake as it has about engaging with traditional cultures in the right way.

I like the “3Cs Rule,” devised by the Cultural Intellectual Property Rights Initiative, for guiding ethical and sustainable collaborations with Indigenous peoples and local communities. The 3Cs stand for consent (free, prior, and informed consent of the community), credit (acknowledgement of the source community and the inspiration it provided), and compensation (monetary or non-monetary).

There are some examples of successful collaborations, but not many. One is the agreement entered into in September 2019, between Walt Disney Animation Studios and the Sámi people regarding the animation film Frozen 2. In terms of the agreement, Sámi were consulted on the film, Disney committed itself to producing a Sámi-language version of the film, and training opportunities were created for Sámi people. In press reports, monetary benefit-sharing is also mentioned. In those same reports, Sámi representatives, who described the partnership as a “win-win,” are quoted as having said that Disney got credit for working with the Sámi, and the Sámi got an opportunity to expose their culture, without having to be worried about how it would be portrayed.

At WIPO, we are trying to encourage more collaborations like this that are equitable and sustainable.

Additional resources: Non-confidential and ceremonial version of the Disney/Sami agreement

Please share your thoughts on the Nagoya Protocol of the United Nations Convention on Biological Diversity and the 2019 agreement between South Africa’s San and Khoi communities and the country’s rooibos tea industry.
Deep in the mountains of the Cedarburg, north of Cape Town in South Africa, red bushes dot the landscape. Known as rooibos (“red bush” in the Afrikaans language), these shrub-like plants hold remarkably beneficial nutritional and health properties, and they have been used for generations by the region’s Indigenous peoples—the San and the Khoi—to treat a wide range of ailments. While the Khoi and San peoples were the original harvesters and consumers of rooibos, and some small-scale farmers still cultivate it according to traditional methods, rooibos has become a modern and streamlined multimillion-dollar industry, featuring rooibos tea and a range of cosmetics and skincare products.

By the early 1990s, a company in South Africa—Rooibos Limited—had been established and, in 2005, the South African Rooibos Council was formed to promote the interests of the South African rooibos industry locally and internationally. In 2010, the San Council of South Africa approached the government with a claim under South Africa’s biodiversity law, asking for compensation for its peoples’ traditional knowledge of the plant and for the use of San imagery in rooibos packaging and marketing. In late 2019, a landmark benefit-sharing agreement was entered into between the rooibos industry and the communities. Under it, the San and Khoi communities will receive 1.5 percent of the “farm gate price,” the price that agribusinesses pay for unprocessed rooibos. The agreement, which recognizes and rewards the traditional knowledge of the San and Khoi communities, has been hailed as an historic achievement and a model and precedent for other countries and industries.

The agreement is an example of how an international protocol, the Nagoya Protocol, via the national access and benefit-sharing legislation in South Africa, can play a role in ensuring benefits for Indigenous and local communities.

In 2018, the South African Rooibos Council applied to the European Union for the protection of  rooibos in the EU as a geographical indication (GI). In May 2021, the European Commission approved the registration, making rooibos the first African food to receive GI protection in Europe.

In 2021, the WIPO General Assembly agreed on the renewal of the mandate of the Intergovernmental Committee on Intellectual Property (IGC) and Genetic Resources, Traditional Knowledge and Folklore for the 2022‒2023 biennium, as well as the work plan for the IGC for the biennium. In light of this renewal and based on past negotiations, how do we find the right formula to reach consensus on core issues, such as definition and scope of protections? 
The negotiations being undertaken by the IGC are perhaps the most complex ever embarked upon by a technical organization such as WIPO. They span the entire IP system, are driven by countries and communities that have not previously been demandeurs in international IP norm-building, are largely “top-down” due to a dearth of extensive experience with national legislation, and there is no firm consensus on the rationale for and purposes of new forms of traditional knowledge protection.

Furthermore, the negotiations seek to address environmental, human rights, and cultural issues that go beyond IP, they intersect with existing conventions and ongoing policy discussions in other policy areas, and they entail a profound re-imagining of longstanding IP concepts and principles, such as the “public domain” and “originality.”

While the consensual renewal of the mandate seems to signal a need for a multilateral forum such as the IGC and a willingness of countries to continue the negotiations, meaningful progress is unlikely without the initiation of a true interests-based negotiation, design of an effective working methodology, a narrowing of expectations around the scope of the protection being sought, clarification of the rationale for and purposes of new forms of traditional knowledge protection, demandeurs building cross-regional coalitions and creating useful leverage, and greater public engagement with the purposes and expected benefits of outcomes in the negotiations.

The IGC negotiations were suspended in 2020 and 2021 because of the pandemic. They are scheduled to resume in early 2022. I hope all delegations have made use of the break to reflect on the state of the negotiations and will be ready to infuse them with fresh dynamism, clarity, and pragmatism once they resume.

During INTA’s 2021 Leadership Meeting in May, INTA and WIPO signed a memorandum of understanding (MoU) to formalize INTA’s support of and involvement in the WIPO Indigenous and Local Community Entrepreneurship Program, which is run by the WIPO Traditional Knowledge Division. Please tell us about the program, including its origins, status, goals, and measures of success.
The Indigenous and Local Community Entrepreneurship Program empowers entrepreneurs and their communities by providing them with IP, business, and life skills. They also create spaces for them to build relationships with other entrepreneurs, business partners, and investors.

We are delighted that INTA is a lead partner in this program. INTA provides trainers and mentors, such as Marion Heathcote (Davies Collison Cave, Australia) and Djakhangir Aripov (PETOŠEVIĆ, Uzbekistan). INTA also arranges for some of the entrepreneurs to receive pro bono legal advice and assistance in applying for trademarks. WIPO provides financial support for the filing fees. INTA’s wholehearted support and enthusiastic commitment as reflected in the MoU are greatly appreciated by WIPO and the entrepreneurs themselves and their communities.

The training phase of the program for women ran for a second time in October 2021, and the mentoring will continue well into 2022. Over 500 applications were received for the 25 available seats.

We look forward to many INTA members being involved as trainers and mentors, as well as pro bono legal advisors.

Any views expressed in this interview are those of Wend Wendland and do not necessarily reflect the views of WIPO or any of its member states.

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.

© 2021 International Trademark Association