Trademarks and Traditional Knowledge and Cultural Intellectual Property Rights

TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, Graeme B. Dinwoodie and Mark D. Janis, eds., Edward Elgar Publishers, 2008

Victoria University of Wellington Legal Research Paper No. 36/2011

40 Pages Posted: 30 Jul 2007 Last revised: 26 Feb 2014

Susy Frankel

Victoria University of Wellington

Date Written: November 10, 2011

Abstract

Indigenous peoples' rights in relation to cultural traditions and the commercial exploitation of those traditions has been an issue for a considerable period of time. The increase in international trade in products or intellectual property derived from traditional knowledge has highlighted the call for protection of that traditional knowledge and the culture associated with it. In particular, the effect of the TRIPS Agreement as the strongest international agreement across the core aspects of intellectual property has intensified the debate over how much protection there should be for traditional knowledge and cultural property. This chapter considers these issues and their relationship with the law of trademarks. In particular, it discusses the uses and limitations that trademarks have to protect traditional knowledge. As aspect of that discussion is the approach of trademark systems to prevent third parties from registering culturally offensive marks. The chapter compares the approaches of the domestic systems of the United States and New Zealand with regard to culturally offensive trademarks and the grounds for opposition in the registration process.

Keywords: traditional knowledge, trademarks

Suggested Citation

Frankel, Susy, Trademarks and Traditional Knowledge and Cultural Intellectual Property Rights (November 10, 2011). TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, Graeme B. Dinwoodie and Mark D. Janis, eds., Edward Elgar Publishers, 2008; Victoria University of Wellington Legal Research Paper No. 36/2011. Available at SSRN: https://ssrn.com/abstract=1003608

Susy R. Frankel (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington, 6140
New Zealand

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