Finding the right balance between legitimate inspiration and inappropriate use can be a difficult exercise for brand owners, but the first step for a brand owner to try and prevent potential misuse is to be aware of the risks.

The consequences
There are serious consequences for the misuse of indigenous people’s traditional cultural heritage, knowledge and expressions, even if inadvertent, to both brand owners and indigenous people. There are, of course, legal risks, as brand owners may be exposed to claims of indigenous communities based on IP rights, unfair competition, trade practices law, labelling laws and/or national laws where they may exist.

Reputational risk is very high, with potential impact on the general public, end consumers and/or shareholders’ opinions on the company’s business ethics notwithstanding public apologies that may subsequently be expressed. With the speed and scale of today's communication network, negative reaction may quickly reach a global audience even though the use may have been limited in time and/or to a specific territory.

There are also associated financial risks. Negative press may kill a product or campaign, resulting in lost sales and corrective advertising expenses, and may even adversely affect the company’s stock price.

From the concerned indigenous people’s side, unauthorized use and commodification of cultural heritage often results in human consequences far beyond potential loss of opportunities or profits. It can notably be perceived as a serious offence to the peoples' culture, and tradition, as well as obligations to protect and control heritage and knowledge with the potential of destroying both cultural integrity and community.

The challenge
There are reportedly 5,000 existing indigenous communities in 70 countries representing 350 million people (Maaka, R and Fleras, A, The Politics of Indigeneity, 2005 University of Otago Press, page 29). This reality, combined with the international activities and reach of many companies, increases the risk of inadvertent appropriation of the expressions of indigenous people used to denote their traditional culture and folklore including legends, words, signs, names, symbols, songs and instrumental music, dances, plays, ceremonies, rituals, games, art, handicrafts and architecture.

While it would seem impossible to have an exhaustive knowledge of all the different indigenous cultures, a brand owner can take some simple steps during the clearance process to minimise potential risks. These may include:

• Raise the awareness of the issue with the main actors in the creative process (marketing, advertising agencies) as well as their legal partners;
• Enquire as to source of inspiration;
• Check on the internet if the sign refers directly or indirectly to an indigenous community;
• Integrate questions of possible indigenous rights claims into a clearance check list for those reviewing proposed use;
• Ask outside counsel if the searched sign is likely to be offensive to local communities or have other connotations when outsourcing availability searches;
• Organise a review of the planned use by different functions (IP, commercial law, marketing, corporate affairs) and at different levels (local, regional, central).

Article provided by:
Diane Silve, Philip Morris International Management SA Switzerland

Marion Heathcote, Davies Collison Cave, Australia (members of the MARQUES IP Outer Borders Team).