What do Ralph Lauren, Zara, Louis Vuitton, Carolina Herrera and Shein have in common? They have all been accused of using indigenous Mexican designs in their clothing. As brands seek to differentiate themselves and connect with diverse audiences, the appropriation of cultural symbols, names, and practices has become increasingly common. So the question is, does trademark law allow cultural appropriation?
Urban Outfitters faced a strong backlash in the US after using the trademark NAVAJO for clothing, jewellery and flasks. In addition, a very brief database check shows that the name NAVAJO has been registered in the EU by various companies and individuals, covering products like bicycle accessories, 3D printers, lamp shades, clothing, umbrellas, tobacco and many others. The same holds true for the names of many other indigenous groups.
Does trademark law prohibit the exploitation of traditional cultural expressions?
The short answer is no. The EU trademark law, and trademark laws of most countries, do not have any direct provisions that would preclude the registration of trademarks consisting of, for example, Mayan or Aztec designs or phrases, or names of indigenous groups.
The EU trademark regulation contains a provision that prohibits the registration of trademarks that are “contrary to public policy”, but at least until now, this provision has not been interpreted to include cases of traditional cultural expressions.
It is not impossible to see, however, that as there is an increased awareness and appreciation of the cultural heritage of indigenous people, EUIPO started to take a view that protecting trademarks that include elements of cultural heritage is against public policy.
There is a public interest in preventing a single company from claiming exclusive ownership of designs and symbols that are part of the cultural heritage of another country or group. Also, there are international treaties that expressly deal with the human rights of indigenous people. On the face of it, the prohibition of registration of marks that are contrary to public policy could easily be decided to include traditional cultural expressions.
Another possible obstacle to registering figurative designs as trademarks is that trademarks that have become customary in the established practices of the trade are considered non-distinctive. This might apply to some commonly used indigenous patterns, but by and large, this provision does not provide a strong protection against the registration of trademarks that might misappropriate cultural heritage.
It could also be argued that making a strong and false link to a particular culture makes the trademark deceptive and therefore not registrable. Trademarks that deceive the public, for example as to the nature, quality or geographical origin of the goods or service is not registrable. Again, this has not been interpreted to include situations where a reference is made to for example a Native American tribe like the Navajos.
Law might be slowly catching up
EU is currently reforming its design legislation. The proposals include a prohibition of registering designs that incorporate elements of cultural heritage that are of national interest.
Somewhat similarly, trademark laws of most countries already contain a provision preventing the registration of national flags, emblems, and other symbols without the consent of the competent authority. This kind of protection could be expanded to cover traditional cultural expressions.
Most importantly, The World Intellectual Property Organization has taken the protection of cultural heritage on its agenda and is currently working on an international agreement for the protection of traditional cultural expressions. Its objective is to provide for effective, balanced, and adequate protection relating to intellectual property against unauthorized and/or uncompensated uses of traditional cultural expressions and against the erroneous grant of intellectual property rights over traditional cultural expressions. In other words, traditional cultural expressions would be excluded from unauthorised exploitation and trademark protection, and where protection was granted, it could be invalidated.
The bad news is that there is only a very preliminary draft version of the treaty at the moment, so even in the best-case scenario it will be years before the it is in force, if ever.
Conclusion
Currently, trademark law does not provide clear prohibition of unauthorised use and registration of traditional cultural expressions. In most cases, it is possible for individual companies to register them as trademarks and obtain rights to them to the exclusion of others, even of members of those cultural groups whose creations have been appropriated.
While this is the current situation, existing legislation could be interpreted to prevent the registration of traditional cultural expressions on the basis of it being contrary to public policy and the rights of indigenous groups. So far, this interpretation is not taken up by the EUIPO.
Considering how the public awareness and perception of this issue has changed in the last 10 years, it is easily conceivable that EUIPO will decide that registration of traditional cultural expressions is against public policy. The good news about this is that it would not require legislative action, a policy decision from EUIPO would be enough.
In the meantime, the best mechanism for preventing the unauthorised use of traditional cultural expressions at the moment seem, unfortunately, to be social media.
See also
Do you have a deceptive trademark
Geographical names as trademarks
