The Branding of Traditional Cultural Expressions: To Whose Benefit?

Abstract

This chapter is concerned with the legal issues surrounding the branding of traditional cultural expressions (TCEs). Over the past few decades, ethnicity trends combined with today’s digital culture have prompted a significant increase in both the commercial and non-commercial branding of TCEs by indigenous communities as well as by third parties. Branding is a process that involves the creation of a unique name and image for a product in the consumers’ mind through advertising campaigns or merchandising with a consistent theme. Branding aims to establish a significant and differentiated presence in the marketplace that attracts and retains loyal customers. It is not limited to goods and services, and can also apply to people, places and communities. Traditional words, images, symbols, music, performances or objects are increasingly being used to brand products, people, communities, corporations and disciplines. Third-party branding practices that use indigenous names, signs and symbols raise issues of ownership, authorisation, attribution and exploitation. On the other hand, some indigenous communities would like themselves to benefit from the branding of their TCEs and to protect their economic interests in indigenous names, signs and symbols. In this perspective, the holders of TCEs are concerned about how best to use intellectual property rights (IPRs) as differentiation tools in the marketplace, prevent misappropriation and misuse, and contribute to the preservation and safeguarding of indigenous names, signs and symbols, and of TCEs generally.