Authors: Adam Lakusta, Lorraine Pinsent
Despite Canada’s intellectual property (IP) laws failing to provide protections specifically for Indigenous peoples’ traditional knowledge, there are a number of ways traditional knowledge can be protected – including through trademark law.
Indigenous peoples have a wealth of IP, some of which comes in the form of traditional knowledge. Although there are many definitions of traditional knowledge, it can generally be understood as the knowledge, skills and practices that are passed down between generations of a community or group that forms part of the group’s culture and spirituality.
For Indigenous groups seeking better options for the long-term protection of their culture and traditional knowledge, one solution is the use of trademarks and official marks. These marks can help prevent cultural appropriation and can be renewed indefinitely.
Another way to protect traditional knowledge is through copyright registrations. However, there may be a couple of reasons why trademark protection, when applicable, is better suited to protecting traditional knowledge. First, although copyright lasts for a long time, it is inherently time-limited. For traditional knowledge that has existed for hundreds if not thousands of years as ideas passed down by oral traditions and practices, the time-limited nature of copyright protection may be inadequate.
Protecting Traditional Knowledge Using Trademark Law
While not an ideal solution, trademark law is being used increasingly by Indigenous groups to protect traditional knowledge and culture. A trademark is a sign or combination of signs that is used to distinguish goods and/or services. Trademarks are registered for a period of 10 years and can be renewed for 10-year periods indefinitely.
Once a trademark has been registered, the owner has the exclusive right to use the trademark in association with the goods and/or services it has been registered for across Canada. Some examples of famous trademarks are the logo on Apple computers, the Nike Swoosh and the tricolour Pepsi logo. In Canada, there are two types of trademark registrations: standard registrations and official marks. For the purposes of protecting Indigenous traditional knowledge and culture, official marks are perhaps the most powerful tool.
One key limitation of trademark protection is its commercial nature. As not all Indigenous marks have a commercial dimension, standard trademark protection can be inappropriate in some instances.
Canada’s Trademarks Act accommodates for marks that are inherently non-commercial through official marks. A main purpose of the official marks regime is to remove certain marks from trade and commerce to prevent the marks from being exploited for private profit. Official marks are adopted and used by public authorities that meet the requirement set out under the Trademarks Act. To be deemed a public authority, an entity must be subject to significant government control and serve a benefit to the public.
Official marks hold some considerable advantages over trademarks. In general, they are faster to obtain than standard trademarks, do not have to specify goods and/or services and are not subject to the standard trademark examination procedure. Many Indigenous groups, by virtue of their self-government agreements and public nature, meet these requirements and are entitled to hold official marks.
Unlike standard trademarks, official marks are registered in perpetuity and do not require renewal. As such, the fees involved in adopting an official mark are considerably less than traditional trademark registration. Additionally, from the date an official mark is adopted, others are prevented from using any trademark or otherwise that is likely to be mistaken for the official mark, except for in association with goods and services for which the mark had been used prior to the official mark’s adoption. Public authorities may also use their official marks in association with any good or service. Most importantly, however, the use of official marks without the consent of public authorities is prohibited. Official marks can be a powerful tool for Indigenous groups to protect and control marks that are associated with their traditional knowledge.
Indigenous groups are becoming increasingly aware of the protection available under official marks, which have been adopted to protect flags, designs and armorial bandings. Examples of successful Indigenous-owned official marks in Canada are the Nisga’a Nation’s flag, the Snuneymuxw First Nation’s petroglyph design marks, the Department of Indian Affairs and Northern Development’s Igloo design mark (denoting authentic Inuit artwork) and the Cowichan Band Council’s GENERAL COWICHAN mark.
Common Law Trademarks
While having a registered trademark is widely considered the gold standard in trademark law, common law trademarks can also be used. Common law trademark rights are acquired through historic use, goodwill and reputation for a specific mark. As Indigenous groups have been using their marks over many generations, they would have acquired common law rights to their trademarks. In the event that third parties use confusingly similar marks, Indigenous groups may be able to enforce their common law rights against the third parties to effectively protect their marks.
Canada’s IP legislation does not provide a way to protect Indigenous traditional knowledge and cultures specifically. However, by leveraging the use of trademarks and/or official marks, Indigenous groups may be able to effectively protect certain aspects of their traditional knowledge from being stolen and appropriated. MLT Aikins has advised a number of Indigenous groups on obtaining official marks and trademarks. Contact our Trademarks group to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.