discusses the limited ways in which branding strategies involving trade marks and geographical indications can be used to protect traditional knowledge. The chapter concludes that these intellectual property mechanisms cannot, on their own, achieve the goals of indigenous peoples in protecting traditional knowledge and in utilising that knowledge for development.Frankel notes that
Traditional knowledge (TK) is not only information to many indigenous peoples; it is part of their identity. In a broad and non-legal sense of the concept of brand, indigenous peoples are in part identifiable and, thus, branded by association with particular manifestations of their knowledge. When others make use of that knowledge without the permission of indigenous peoples and when the outputs resulting from the use of that knowledge are severed from the indigenous people, from whom the knowledge was sourced, two kinds of complaints arise. The first is that the indigenous peoples identity has been impacted adversely and the second is that no benefits that flow from the use are returned to the indigenous peoples. Thus, the reasons that indigenous peoples seek protection for traditional knowledge are many and varied, but broadly fall into two areas. The first is protection against offensive use of traditional knowledge, and the second is some kind of control that means indigenous peoples consent must be obtained for uses of their traditional knowledge. Consent may be separate from any benefit sharing or could be given with the condition that some kind of benefit returns to the indigenous people from the commercial use. Through these means and indigenous peoples own development of their knowledge, indigenous peoples hope to improve their economic and cultural situation.
Because indigenous peoples’ own identity is marketable, it is a kind of brand. The attraction of the exotic, of the natural and previously ‘undiscovered’ remedy, are examples of how western consumers are attracted to the products of traditional knowledge. Around the world there are many examples of how westerners make use of indigenous culture. Some examples include the Fiat Motor Company using a Māori haka, the Lego company using Māori names, and the artwork of aborigines in Australia featuring on tourist advertisements. But what advantages and disadvantages lie in branding traditional knowledge in this way? Could indigenous peoples extract even greater value from their traditional knowledge by using the branding tools of intellectual property law? Those tools are primarily trade mark and geographical indications. Is either of these legal regimes of any assistance to protecting traditional knowledge? Is either of these legal regimes of any assistance to indigenous peoples’ development?
There are broadly two ways in which branding traditional knowledge is relevant to these wider questions. The first is what might be described as active branding and the second is defensive branding. Active branding is when indigenous peoples seek to brand aspects of their own traditional knowledge in order to exploit that knowledge. Defensive branding techniques are those that may exist to prevent others from branding indigenous peoples traditional knowledge. This chapter discusses each of these approaches and the pros and cons of each of those approaches for indigenous peoples.'Navigating the Landscape of Indigenous Knowledge – A Legal Perspective' by Natalie P. Stoianoff in (2012) 90 Intellectual Property Forum Issue 23 notes
Australia is a party to a number of international treaties and declarations which recognise the significance of traditional and Indigenous knowledge and cultural expressions, and emphasise the need to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities. For example, the Convention on Biological Diversity 1992 (CBD) provides member nations with the opportunity to establish regimes that would regulate foreign and domestic access to valuable genetic resources and traditional and Indigenous knowledge while establishing benefit-sharing mechanisms relating to that access. The CBD has also led to significant international debate on the interrelationship with intellectual property rights, particularly patent rights and plant breeders’ rights, which are often the end goal of the desire to access such genetic resources. Australia has been reluctant to take the necessary steps to adequately protect Indigenous knowledge and to ensure that equitable benefit sharing occurs in the use of that knowledge across the country. Conversely, some Indigenous communities have taken their own steps either to engage creatively with the intellectual property regime or to operate outside of that regime. This article will navigate this complex landscape and consider some of the solutions posed by other nations and regions of the world.