28 August 2019TrademarksRory O'Neill

Australia mulls ‘offensive marks’ to protect indigenous knowledge

IP Australia has concluded a consultation process over the protection of indigenous knowledge, which could lead to the country introducing a ban on ‘offensive’ trademarks.

According the country’s IP office, the consultation process was devised in response to a number of issues that had been identified with Australia’s recognition and protection of indigenous knowledge.

“Many non-indigenous people are not aware of the cultural protocols surrounding the ownership and use of indigenous knowledge or the offence caused by misappropriation,” said IP Australia’s report of the process.

More fundamentally, IP Australia said there was a “gap” between Western legal norms and indigenous practices cultural practices relating to knowledge.

“This is apparent in the area of IP law, which focuses on individual ownership and does not reflect the emphasis of ongoing custodianship that is fundamental within indigenous culture,” the report said.

Among the proposals put forward to the public for consultation included an “offensiveness ground of refusal for trademark and design applications”.

According to IP Australia, 70% of online survey respondents supported this proposal.

The report said that other stakeholders had expressed concern that the “scandalous” and “offensive” marks formula, similar to what was recently struck down by the US Supreme Court, was not suitable for the protection of indigenous knowledge.

“Determining whether a trademark or design was offensive would require consultation with a community or a person authorised or nominated to speak on behalf of the community,” the report said.

Cultural expressions database

Other proposals included the creation of a database of words and images which contain Traditional Cultural Expressions.

This proposal received the “conditional” backing of the New South Wales Aboriginal Land Council (NSWALC), who expressed some concerns at the idea.

“It would be remiss if NSWALC did not caution against the creation of a database of indigenous knowledge unless the principles of data sovereignty, and free prior and informed consent, can be fully incorporated across all aspects of the database administration and implementation,” the council’s written submission said.

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19 November 2020   Despite the fact that traditional knowledge doesn’t fit squarely within our current IP systems, there is much to be gained by the indigenous communities who hold this knowledge and the brands that choose to work with them. Sarah Morgan reports.
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