Friday at the Annual Conference was a special occasion: the first time the subject of indigenous rights was the subject of a session in the main conference. The US Ambassador to the UN Human Rights Council Keith Harper, the first Native American of a federally recognised tribe to be appointed a US Ambassador, opened the discussion.
He welcomed the willingness to “take on and discuss a challenging subject” and emphasised the need to focus on implementation in the real world of business and society: “We want to avoid these kinds of conflicts. We want to do the right thing. My experience is people also want to do the right thing … Businesses want settled expectations – what the rules are – and for those to be fair and clear and that everybody follows them.”
He provided a number of examples where brand owners had caused hurt and offence to indigenous peoples, either by using their names in products (such as Cherokee or Navajo) or by using artwork such as tattoos and feathers, which are an important representation of achievement in some cultures. “Wearing feathers you didn’t earn is like wearing a medal you didn’t earn,” said Ambassador Harper.
He also welcomed the “affirmative steps” taken by a number of brands including Nike and Adidas, who have engaged with indigenous communities and offered support to them: “It’s incumbent on people of goodwill to work with indigenous communities to identify these fault lines and navigate them.”
Daphné Zografos Johnsson of WIPO explained some of the discussions and initiatives underway at the international level to identify and protect traditional knowledge. “The problem is there is a need for protection of this subject matter. It is clearly IP, but it does not fit well into the IP boxes we have. A work needs to be original to be protected and it’s often hard to demonstrate novelty,” she said.
While WIPO is working towards developing a sui generis system of protection based on IP values and principles, said Daphné, in the short-term there is a focus on capacity building, and helping local communities and indigenous peoples to develop IP strategies that are appropriate for them. One example where this has taken place is Papua New Guinea.
The final speaker, Marion Heathcote of Davies Collison Cave, provided further examples of effective protection of indigenous rights, notably from the Māori people in New Zealand. They have taken action against Māori cigarettes and, in the week of the conference, Disney recalled a Halloween costume that had caused offence.
Marion provided several further examples where brand owners had taken cultural expressions and used them without authorisation and often inappropriately – for example in advertising for cars, alcohol and underwear.
But she stressed that there is an opportunity for brands to work with communities respectfully and generously: “Corporate social responsibility is a game changer. It’s what millennials are looking for. They are looking for brand owners who are able to connect on a community level … It’s about preservation of culture and makes us strong and a fantastic world.”
Recent CJEU cases
The Conference’s final session was an update on CJEU case law presented by Jeremy Blum of Bristows and Paul Maeyaert of Altius, with a number of substantial contributions from the floor.
The speakers discussed the implications of various cases, including Enterprise v Europcar, Nestlé v Cadbury, Daimler v Együd Garage and Tommy Hilfiger v Data Center. Summarising the wide-ranging discussion, Jeremy said: “The theme of today is evidence and what evidence you put forward to various tribunals.”
Lewis Gaze Memorial Scholarship
MARQUES Chair Uwe Over presented the annual Lewis Gaze Memorial Scholarship along with Professor Manuel Desantes of Alicante University and José Amorim of Gastão da Cunha Ferreira Lda and a member of the MARQUES Education Team. The award winners were:
1st place: Sara Navarro Joven for her paper “A judicial approach to colour trade marks: international, European and national perspectives”
2nd place: Rubén Cano Perez for “Pharmaceutical patents in the TPP: The more things change the more they stay the same?”
3rd place: Lesly Laura Capucine Nowak for “Big Data and the challenge of protecting your assets”
Having started the Conference by removing his tie, Uwe went one step further in his closing speech – taking off his shoes and putting on flip-flops.
Next year’s MARQUES Conference will take place in Prague, Czech Republic, from 19th to 22nd September, and the theme will be “Brand and Culture”. More information will be available in April 2017.
Issue 069
Events lined up in the coming months include three workshops on the USPTO, an arbitration/mediation workshop and the second Luxury Brand Seminar
