Traditional Knowledge and Trade Marks
Author Marcel Krüger Licence CC BY-SA 3.0 Source Wikimedia CommonsJane Lambert
A few days ago the Intellectual Property Law Association of Nigeria referred me to a thread of tweets by a Nigerian national who was shocked that a private limited company in the United Kingdom could register the name of some 70 million people as a British trade mark. S.4 (3) of The Trade Marks Act 1994 prevents the registration of national emblems and the emblems of certain international organizations as trade marks and s.3 (a) the registration of signs that are contrary to public policy, but it does not specifically exclude the registration of the names of tribes or peoples. Having previously spoken at a webinar organized by that Nigerian IP Law association I offered to advise and assist it pro bono in this matter. My offer has not yet been accepted. I guess that is because the complainant had already carried out his research and anticipated what my advice was likely to be.
Having been married to a Sierra Leonean national for nearly 27 years and having visited West Africa I understood the feelings that prompted the tweets. Before it became independent, many Sierra Leoneans gave their children names in the language of those people to express pride in their heritage The meanings of some of those names are quite beautiful when translated into English. My late spouse's name, for example, meant "My mother has returned".
The basic concepts of modern intellectual property law were developed in the industrial countries of Western Europe and North America towards the end of the 19th century. That happened to coincide with those countries' territorial expansion into Africa and Asia. Since IP protects investment in branding, design, technology and creativity, it would not be unfair to regard it as an entrenchment of the economic power of rich and powerful nations and their enterprises at the expense of the peoples in less advanced countries. In other words, IP has more than a little in common with colonialism.
Part of the movement to decolonize IP is traditional knowledge. As I explained in What is Traditional Knowledge and how far is it protected in the UK? 3 April 2018 NIPC Law, traditional knowledge is not so much an intellectual property right as an intellectual asset, There is very little legal protection for it in the UK or indeed any other country. The World Intellectual Property Organization provides a number of services to identify, document and wherever possible protect the asset but there is not a lot of information about the legal protection of traditional knowledge so far achieved on WIPO's website.
A very recent development that might assist traditional knowledge asset holders such as the people whose community name had been registered as a trade mark is a memorandum of understanding between the World Intellectual Property Organization and the International Trademark Association on 5 May 2021 (see WIPO press release WIPO and INTA Sign MOU Committing to Provide IP-related Legal Services to Indigenous and Local Community Entrepreneurs 12 May 2021). The MoU commits INTA to providing pro bono legal services to indigenous and local community SMEs and entrepreneurs for issues related to intellectual property. In general, it is very much easier to oppose an application to register a traditional cultural expression as a trade mark than it is to revoke or invalidate a registration as the registration is a property right that cannot easily be expropriated.
Ultimately, the best way to protect traditional knowledge is to change the Paris Convention for the Protection of Industrial Property or the Agreement on Trade-Related Aspects of Intellectual Property Rights. That will take time and will require the cooperation of the industrialized nations but it appears that a start has been made with the establishment of The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).
Anyone wishing to discuss this article or traditional knowledge generally should call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact page.
2 June 2021 Jane Lambert The UK YORUBA Trade Mark Registration