Just a decade ago, a requirement that a designer disclose the origin of traditional cultural expressions, traditional knowledge, and biological or genetic resources used in creating a design in an industrial design application was virtually unheard of in national or regional protection systems. But as awareness of the many ways in which cultural and genetic resource use and misappropriation can occur is evolving, some developing countries have begun exploring the appropriateness of—and in some cases even instituting—such a requirement.
These developments have taken center stage in the negotiations of a draft Design Law Treaty (DLT) in the World Intellectual Property Organization Standing Committee on the Law of Trademarks, Industrial Designs, and Geographical Indications, which is expected to make it easier for applicants to obtain design protection globally by limiting domestic design registration requirements. Currently, a controversy exists over an African Group proposal to allow policy space in the draft DLT for countries to be able to require design applicants to disclose the origin of traditional cultural expressions, traditional knowledge, and biological or genetic resources used in creating protectable designs.
This paper focuses on that controversy. It highlights possible justifications countries may have for desiring the flexibility to impose disclosure requirements on design protection applicants; and opines on the broader ramifications of the dispute for policy coherence and mutual supportiveness goals in relation to cultural and genetic resource protection issues.