Clancy PC, Intellectual Property Law, Paula Clancy, Trademarks, Canadian IP, @CanadianIP, IP
In the most recent issue of the International Trademark Association’s (INTA) Bulletin, Tracy Rengecas explores issues surrounding the unauthorized use of Traditional Cultural Expressions (TCEs). TCEs include Indigenous names, words, symbols, songs, images and other expressions that are imbued with significant meaning, and even sacred value, for Indigenous communities.
When a company adopts an Indigenous word or symbol and uses it for commercial gain, without authorization or context, this results in cultural misappropriation. As Ms. Rengecas notes, citing a recent blog post by Wend Wendland: “… the tribal name of the Maasai, an indigenous community of East Africa, has been used without permission by 80 companies, including Jaguar Land Rover and Louis Vuitton. The Maasai community continues to live in poverty and does not derive any income from the use of its name.” Similar issues have arisen in the U.S. with Jeep’s use of the trademark GRAND CHEROKEE.
The use of derogatory or offensive words for commercial gain is a related issue. The Washington football team recently dropped the use of REDSKINS, after significant pressure from sponsors and the BLM movement forced their hand.
The Canadian Trademarks Act contains a prohibition against the registration of “any scandalous, obscene or immoral word or device” - Section 9(1)(j). This section may be used to object to the registration of, or to expunge marks that are offensive to Canada’s Indigenous community. Nevertheless, this may be of limited value since the company may conceivably continue to ‘use’ the offensive word or design.
Article 31 of the United National Declaration on the Rights of Indigenous Peoples (the “Declaration”) recognizes the right of Indigenous peoples to maintain, control, protect and develop their cultural heritage, including IP rights in such heritage. In December 2020, the Government of Canada introduced legislation to implement the Declaration. Bill C-15 (the “United Nations Declaration on the Rights of Indigenous Peoples Act”) received Royal Assent earlier this week (on June 21, 2021). It will be interesting to see how the Government and Indigenous communities work together to fully implement the Declaration.
To read Ms. Rengecas article in the INTA Bulletin, click here. To learn more about the Declaration, click here
Clancy PC, Intellectual Property Law, Paula Clancy, Trademarks, IP