30 September 2016TrademarksEsther Aburto Olague

A collective approach to traditional knowledge

For decades, interest in intellectual property has been concentrated on the benefits that companies or individuals can obtain from registering IP rights, but not much has been done about using IP to protect indigenous rights.

Indigenous people have strong connections with intellectual and cultural property pertaining to their region, country and heritage; this connection is the heart of their identity (according to lawyer Marion Heathcote). Unfortunately, over time, indigenous people have lost control of their identity with the rest of the population just watching and not doing much. For this reason it is relevant that indigenous people can exercise their right to own and control, commercialise the use of, and obtain benefits from, their IP rights.

Internationally there has been concern about protecting indigenous rights and it started with the World Intellectual Property Organization (WIPO) in 1998 with slow negotiations on the big challenge of how to protect customary rights, preferably within an IP law context, so that both a traditional past and the basis of future creative expressions are recognised. For this purpose WIPO created the Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore and late in 2011 all discussions were turned into text-based negotiations with the aim of creating international treaty documents. The 31st session of the IGC will be held in September 2016.

WIPO defines traditional cultural expressions (TCEs) as music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives that belong to, or are created by, indigenous cultures or groups.

The General Assembly of the United Nations was not left behind and in September 2007 it adopted the “Declaration on the Rights of Indigenous Peoples”, which was created to preserve and revive indigenous cultures and help them recover that lost identity.

In order for international efforts to be successful, countries have to make adjustments to their legislation in order to recognise indigenous people’s TCEs. Due to the application of local laws in each country, the options for protecting indigenous rights are not necessarily the same but this will not matter as long as there is unanimous agreement to protect those rights. Many nations and regions have made attempts, in some cases successful, to develop laws that recognise the existence and need to protect indigenous rights and TCEs from unauthorised use or misappropriation (according to lawyer Tracey Mosley).

Around the world

The US Patent and Trademark Office maintains a database of the official insignia of Native American tribes. The Andean Community (Bolivia, Colombia, Ecuador and Peru) requires that any sign used in trading that affects the right of a third party shall not be registered as a trademark, especially if it consists of a name of an indigenous people or local community, or any of its characters are part of a cultural expression, unless the application is filed by an indigenous people or filed by a third party that has its express consent.

In 2001, India opened a “Traditional Knowledge Digital Library”, which includes traditional knowledge about medicinal plants and formulations used in Indian systems of medicine, with the main purpose of protecting the ancient and traditional knowledge by documenting it electronically and classifying it with an international patent classification system.

New Zealand has also developed an interest in protecting TCEs and traditional knowledge, which is sometimes referred to as “expressions of folklore”. The Trademarks Act 2002 established the creation of a Māori Trademarks Advisory Committee, which can refuse the registration of trademarks if they are considered offensive to Māoris. The downside to this committee is that it is limited to signs that are considered offensive rather than inappropriate, and it can prevent registrations only in New Zealand, not in any other country.

"the options for protecting indigenous rights are not necessarily the same but this will not matter as long as there is unanimous agreement to protect those rights."

As Professor James Anaya of the University of Colorado has said, the world has focused on the IP rights of individuals because the protection belongs only to such individuals, but indigenous rights are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IP rights to one or a few individuals (as noted by lawyers Keri Johnston and Heathcote).

This author differs a little from Anaya’s opinion, and in order to clarify this, this article will concentrate on trademarks, saying that it might be difficult but not impossible to ascribe IP rights to one or a few individuals. An option to achieve this has been used by the Mexican Institute of Industrial Property (IMPI).

Practice in Mexico

A trademark is a mark that has been adopted by its use in association with a product or service for the purpose of distinguishing a product or service from the products or services of others, but in practice trademarks generate wealth, represent intangible assets and can transcend geographical boundaries.

Trademarks are not limited to designs and names: many jurisdictions have evolved into authorising the registration and protection of 3D marks, as well as sound marks, holograms, scents, moving images, textures and even tastes (according to Mosley).

Mexico still does not protect all of these types of trademarks, but it chose the option of using collective trademarks in order to implement protection for indigenous rights and TCEs. A collective trademark is a visible sign that distinguishes products and services of companies or associations, manufactures, producers, merchants and service providers that are legally incorporated. The collective right is granted to a whole group, but what if that group was an indigenous community or culture?

In October 2014 artisans from a municipality in Tenango de Doria and Tulancingo de Bravo, in the state of Hidalgo in Mexico, got together to file the first collective trademark for ‘Tenangos Bordados de Hidalgo’ (‘Tenangos Embroidery of Hidalgo’). The benefits of this kind of registration are that the group will set the standards for the quality and conditions of the product or service and for others to join, and will ensure that those products and/or services always match its own criteria.

Tenango is an area in Mexico where there are many communities that speak Náhuatl and for generations their main activity has been embroidery. All embroideries have many meanings and are used for different purposes to represent animals, death, birth, and for ceremonies to request rain for crops and control the forces of nature. The ideas for the designs were obtained by locals going into caves, where there were cave paintings, and later the lines were a mixture of their own ideas and drawings of others. The tradition sets out that drawings can be made only by men and embroidery done only by women.

This is just a simple example of the millions of types of indigenous knowledge that all jurisdictions must have. What is undeniable is that TCEs are central to native cultures’ identity, existence and preservation, and the need to protect them is both local and international. Does it represent a challenge? Yes it does, but the baseline has already been set.

Unfortunately at the moment there are no international obligations and a few national restrictions on protecting indigenous rights from being registered by other parties who do not have a right or authorisation to use them.

The positive part is that every day more people are appreciating the value of indigenous cultures since they contribute to national identities (according to Heathcote). The question is now left for national governments to decide whether they should include options to protect TCEs.

Esther Aburto Olague is a managing partner at Olague, Zúñiga & Mendoza, a law firm based in Mexico City. She has more than 18 years of professional experience in corporate, intellectual property and immigration law. Olague is a member of the indigenous rights committee of INTA. She can be contacted at:

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