"Section D: The Edges of Trademark Protection" [2008] ELECD 180; in Dinwoodie, B. Graeme; Janis, D. Mark (eds), "Trademark Law and Theory" (Edward Elgar Publishing, 2008)

Book Title: Trademark Law and Theory

Editor(s): Dinwoodie, B. Graeme; Janis, D. Mark

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845426026

Section Title: Section D: The Edges of Trademark Protection

Number of pages: 2

Extract:

17 Culture, traditional knowledge, and
trademarks: a view from the South
Coenraad Visser*



I. Introduction
Here I shall canvass the possible impact of trademark law on traditional
knowledge. I shall argue that such impact manifests itself on two levels ­ the
appropriation of items of traditional knowledge and incorporating them as part
of registered trademarks, and the use of trademarks to enhance the economic
exploitation of, mainly, traditional cultural expressions in order to ensure
income streams to the (mainly poor) indigenous communities holding such
knowledge. In the process, it shall emerge, especially at the second level, that
the collective side of trademark law perhaps best interacts with the collective
nature of much of traditional knowledge.
But first, a question of terminology. Without entering into the debate about
the precise definition of the term "traditional knowledge",1 or about whether
such a definition is a prerequisite to any legal protection of traditional knowl-
edge, I should merely note that, for present purposes, I shall follow the prac-
tice of the World Intellectual Property Organization [hereinafter WIPO]2 of


* Professor of Intellectual Property Law, Head of the Department of Mercantile
Law, University of South Africa, Pretoria.
1 Alternative terms in international instruments include, for example, "knowl-
edge, innovations and practices of indigenous and local communities embodying tradi-
tional lifestyles relevant for the conservation and sustainable use of biological
diversity" (Convention on Biological Diversity, art. 8(j)), "indigenous knowledge
(systems and practices)" (United Nations Draft Declaration on the Rights of Indigenous
Peoples, preamble); "indigenous ...