A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Section D: The Edges of Trademark Protection
17 Culture, traditional knowledge, and trademarks: a view from the South Coenraad Visser* I. Introduction Here I shall canvass the possible impact of trademark law on traditional knowledge. I shall argue that such impact manifests itself on two levels – the appropriation of items of traditional knowledge and incorporating them as part of registered trademarks, and the use of trademarks to enhance the economic exploitation of, mainly, traditional cultural expressions in order to ensure income streams to the (mainly poor) indigenous communities holding such knowledge. In the process, it shall emerge, especially at the second level, that the collective side of trademark law perhaps best interacts with the collective nature of much of traditional knowledge. But first, a question of terminology. Without entering into the debate about the precise definition of the term “traditional knowledge”,1 or about whether such a definition is a prerequisite to any legal protection of traditional knowledge, I should merely note that, for present purposes, I shall follow the practice of the World Intellectual Property Organization [hereinafter WIPO]2 of * Professor of Intellectual Property Law, Head of the Department of Mercantile Law, University of South Africa, Pretoria. 1 Alternative terms in international instruments include, for example, “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity” (Convention on Biological Diversity, art. 8(j)), “indigenous knowledge (systems and practices)” (United Nations Draft Declaration on the Rights of Indigenous Peoples, preamble); “indigenous cultural and intellectual property...
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