Chapter 3: The Protection of Traditional Cultural Expressions with Trade Marks
3.1 INTRODUCTION Over the past decades there has been an increasing use, in the course of trade, of traditional words, designs and symbols by indigenous and non-indigenous entities as a result of a growing trend in ‘ethnicity’. Many well publicised examples of unauthorised use of words, designs and symbols can be found in various parts of the world. To take only a few, in Canada, names of First Nations, such as Algonquin, Mohawk, Haida and Cherokee, as well as symbols such as Indian heads, tepees or tomahawks are used as trade marks by many non-Aboriginal companies to market products ranging from firearms and axes to tobacco, gasoline and cars.1 In the United States, over the years, more than 2,600 high school, college or professional teams have used Native American names and images as mascots, logos and team names2 and most professional teams and many college teams have registered them as trade marks. Finally, in New Zealand, Maori text and imagery have been extensively used in relation to various products such as toys, video games, cars, sports apparel, as well as in the fashion industry. These practices have raised concerns amongst indigenous people and traditional communities that traditional signs are used in the course of trade and registered as trade marks by non-indigenous entities without proper consent being sought from the indigenous communities. In particular, they are concerned that some trade marks are offensive and degrading and that they themselves might be restricted in their use of trade mark laws...
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