Trade Marks and the Protection of Cultural Integrity

Abstract

In this paper, the role of the trade mark in both facilitating and resisting cultural change is considered. In considering the South African case of Laugh It Off Promotions CC v. South African Breweries International, the role of trade mark legislation and its interpretation by the courts is discussed in light of the balance between the rights of trade mark owners and cultural integrity. Furthermore, the legislative approaches in protecting indigenous cultures in the United States, Columbia and New Zealand are considered. While New Zealand arguably provides for greater protection of indigenous cultures through its recently enacted trade mark legislation, it is argued that laws broader in scope could be more effective in protecting cultures from not only exploitation, but from any use of trade marks that may degrade cultural integrity. However, the role of intellectual property law as a mechanism for extensive cultural protection is debatable in itself.

Keywords: Trade Marks, Culture, Indigenous, Intellectual Property