“Control, Protection, Recognition and Respect” – Potential Changes to IP Australia’s Trademark Review Processes to Improve Protection of Indigenous Knowledge – Intellectual Property


Australia: “Control, Protection, Recognition and Respect” – Potential Changes to IP Australia’s Trademark Review Processes to Improve Protection of Indigenous Knowledge

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October was Indigenous Affairs Month in Australia. This year’s theme of “Propelling the Indigenous Economy” highlights the significant contribution that the Indigenous business community has made to the Australian economy, providing a platform to showcase the ‘Powerful’ generated by indigenous entrepreneurial and innovative activities. Indigenous knowledge has been at the heart of much business ingenuity in Australia.

Indigenous knowledge (IK) includes knowledge, practices, skills and innovations rooted in cultural practices, language and connection to the land. It is expressed in many ways and is intrinsic to Aboriginal identity. Although an intellectual property (IP) right can help protect traditional knowledge as a commercial asset, there remain gaps in protection that expose traditional knowledge to misappropriation, misuse and harm. significant cultural potential. In response to increased recognition of the harm caused by inappropriate commercialization of traditional knowledge, IP Australia is introducing a number of measures to improve understanding of traditional knowledge and the intellectual property system, and to safeguard the integrity of cultural knowledge and their forms of expression.

A discussion paper, prepared at the request of IP Australia and the Department of Industry, Innovation and Science and published in 2018, highlighted the issues faced in Australia regarding the protection and management of IK . This paper spawned further research papers, consultations and engagement opportunities, led by IP Australia, to implement a culturally acceptable system that provides Indigenous peoples control, protection,
and respect on their indigenous knowledge. The proposals included the creation of an Indigenous advisory committee and consultation and consent requirements.

The establishment of an Indigenous Advisory Committee (IAP) aims to help IP Australia recognize the unique cultural, economic and social significance of Indigenous knowledge and provide necessary advice on cultural issues, as well as lead reform policies and procedures. The IAP should include members selected on the basis of their knowledge, skills, ties to Indigenous peoples and position in relevant industries, with at least 75% of members being Indigenous and gender balanced. The IAP would work closely with IP Australia’s Indigenous Connections Manager, whose role is to understand the consultations and identify relevant communities, organizations and experts to engage with as needed.

Other potential measures being considered to try to prevent the grant of inappropriate, unfair or offensive rights over TK include:

  • Request proof of consent:If consent is provided, an assessment of the adequacy of that consent, for example, whether it was obtained from the correct community, can be conducted by IAP.
  • Assess whether a cultural offense to a community or communities is caused:This may involve not only IAP, but also engagement with the affected community, traditional owners or custodians.
  • Consider whether the use of Indigenous knowledge is misleading:This includes determining whether the request creates a false suggestion that there is a connection to an Indigenous community. A candidate may need to show that they are part of the relevant community or have entered into an agreement with the community.

Where these measures are implemented, trademark applicants may be required to demonstrate that they have consulted or obtained consent appropriately to the use and registration of a word or image that includes traditional knowledge. Additionally, and to facilitate the recognition and proper processing of trademark applications that include IK, a new question may be added to the application form, allowing applicants to self-identify the inclusion of IK. Establishing a consultation requirement to successfully register a trademark will help Australia meet the international standard of free, prior and informed consent, which is integral to the self-determination of Indigenous communities.

Public consultation on the various proposals and potential measures ended in May 2021 and a consultation update and publication of a proposed plan by IP Australia is currently awaited. In the meantime, IP Australia has established a group of specialist examiners who focus on trade mark and design applications which contain identified IK. As part of Indigenous Affairs Month, IP Australia has launched Wirea reminder service offer to help and support Indigenous businesses and those who work with Indigenous businesses, in order to better understand IP.

A large collection of resources has also been made available on the new IP Australia IP Center for Indigenous Knowledge. These have been compiled to help understand CAs and the important role they play within Indigenous communities, both culturally and as a beneficial asset. With respect to these assets, indigenous communities should have the right to control the decision of whether their ICs can be used in a commercial setting, is provided protection by giving the possibility of imposing constraints, of ensuring acknowledgement of the ownership that indigenous peoples have over their culture to afford respect on their ownership of IK and cultural protocols. By realizing these ideals, the Aboriginal economy will be both morepowered‘ and empowered. We look forward to IP Australia’s consultation update.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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