How Can Trade Marks Protect Indigenous Cultural and Intellectual Property?

George Raptis

• 14 February 2022
• 1 March 2022
• 5 min read

When it comes to protecting Indigenous culture and traditional knowledge, Australian intellectual property law is far from perfect. Whilst registered trade marks can protect the brand features of Indigenous-owned businesses, several questions regarding ownership and consent to using sacred knowledge are bound to arise. Nevertheless, this article outlines:

• what Indigenous Cultural and Intellectual Property (‘ICIP’) is;
• how trade marks can protect, but also where they fall short of protecting Indigenous knowledge; and
• how you might go about using Indigenous knowledge.

What is ‘ICIP’?

ICIP refers to the rights of Indigenous people to protect their traditional art and culture. ICIP can cover different forms of cultural expression, including writing, music, languages, and performances. Some of the rights associated with ICIP include the right to:

• ensure that traditional laws and customary obligations are respected;
• be paid when a business or individual uses ICIP;
• full and proper attribution of the community connected with the specific ICIP;
• prevent a business or person from misusing ICIP in an offensive or misleading manner; and
• control the recording of cultural expressions.

In Australia, intellectual property law only protects some forms of ICIP. For example, copyright law can protect musical, dramatic, literary and artistic works Indigenous people create. In contrast, Australian intellectual property law does not protect the underlying idea in certain cultural expressions, such as the story conveyed in a painting. On that note, whilst Western concepts of intellectual property do not neatly fit into categories of ICIP, Indigenous knowledge has and continues to exist in its own right.

Trade Mark Protection

A trade mark is a sign that a business or individual uses to indicate the trade origin of their goods or services. If you register a trade mark in Australia, you enjoy the exclusive right to use, license and sell your mark concerning your business’ goods and services. In a general sense, this means that you can prevent others from misusing your trade mark.

When it comes to protecting ICIP using a registered trade mark, there are some benefits and shortfalls. Some of the benefits of using a registered trade mark to protect ICIP include the:

• ability to prevent others from using a similar trade mark concerning similar goods and services;
• opportunity for collective ownership of the trade mark;
• ability to use trade marks as identifiers for the source of Indigenous knowledge, since trade marks can denote the origin of a product; and
• duration of protection, which you can maintain in perpetuity as long as you renew your registration.

In the same vein, registered trade marks are in some ways inadequate to protect ICIP fairly. Most notably, non-Indigenous people and businesses can apply for trade marks that contain Indigenous cultural material. If IP Australia approves their application, the trade mark owner can prevent the Traditional Custodians of that material from using it, which can cause significant harm.

As it currently stands, there is no legal obligation for non-Indigenous people and businesses to obtain the consent of Indigenous people before registering trade marks that contain Indigenous art, words or symbols. However, you should seek this permission before attempting to register a trade mark that includes Indigenous knowledge, as it is the respectful thing to do.

Incorporating Indigenous Knowledge in Your Trade Mark

Before you incorporate Indigenous knowledge in your trade mark, you should undergo consultation and obtain consent from the relevant community. You can avoid many issues concerning using Indigenous knowledge by obtaining free, prior and informed consent (FPIC) from the Traditional Owners. 

Under international human rights law, FPIC involves consent that Indigenous communities voluntarily give:

• without coercion or intimidation;
• before the commencement of your trade mark application; and
• informed by the nature of your activity and its likely impacts.

As a non-Indigenous person, you should consider the following points outlined by Dr Terri Janke before you use ICIP:

• Indigenous people are connected to language and design by birthright;
• communal ownership of Indigenous knowledge imposes certain obligations on Indigenous people under customary law;
• if you use Indigenous knowledge in an offensive context, you will likely compromise the integrity of Indigenous knowledge and cause harm; and
• the use of Indigenous knowledge without consent can compromise the process of cultural revitalisation, particularly in light of colonial erasure.

Fortunately, there are various protocols and codes you can use as a guide to engaging with Indigenous people when sharing Indigenous knowledge. This includes the AIATSIS Code of Ethics for Aboriginal and/or Torres Strait Islander Research and the Protocols for Using First Nations Cultural and Intellectual Property in the Arts.

Key Takeaways

A trade mark is a sign that you use to indicate the trade origin of your goods and services. If you register a trade mark with IP Australia, you enjoy the exclusive right to use, license and sell your mark. Although trade marks can protect Indigenous Cultural and Intellectual Property if you use Indigenous art, language or symbols in your trade mark, you should do so respectfully. This includes undergoing consultation with the Traditional Owners of the community and obtaining consent. 

If you have further questions about registering a trade mark, our experienced trade mark lawyers would be happy to assist. Call us on 1300 657 423 or complete the form on this page.

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