Trademark Law and Theory
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Trademark Law and Theory

A Handbook of Contemporary Research

Edited by Graeme B. Dinwoodie and Mark D. Janis

This important research Handbook brings together a set of illuminating works by the field’s leading scholars to comprise one of the broadest and most far-reaching overviews of trademark law issues. Organized around three areas of inquiry, the book starts by offering a rich variety of methodological perspectives on trademark law. Reflecting the multifaceted nature of contemporary trademarks, contributors have drawn from law and economics, political science, semiotic theory, and history. The Handbook goes on to survey trademark law’s international landscape, addressing indigenous cultural property, human rights issues, the free movement of goods, and the role of substantive harmonization. It concludes with a series of forward-looking perspectives, which focus on trademark law’s intersection with the laws of advertising and free speech, copyright law, cyberspace regulation, and design protection.
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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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