Intellectual Property Protection Options for Traditional Communities

Emma Cohen, Intern

The conversation surrounding intellectual property rights and economic growth in developing countries largely focuses on the copyright and patent industries. The contribution of trademarks to these growing economies is often neglected, but also significant. Trademarks “differentiate between identical or similar goods and services offered by different producers or services providers.”[1] They can benefit large transnational companies hoping to protect their brand image in a global market and individual creators and artists seeking to protect their work from counterfeiting and other illegal activity.[2]

In developing countries, trademarks and similar protections are important for traditional artists and communities that create products that reflect their cultural and social identities. These products are often referred to as traditional cultural expressions (TCEs). Without protection, companies can legally exploit TCEs for profit without compensating the artists responsible for the work. An example of this type of exploitation occurs when “indigenous art [is] copied onto carpets, T-Shirts and greeting cards,” and sold in countries across the world.[3] If traditional artisans do not protect their TCEs, they may not fully benefit from the success of these products.[4] This is significant because traditional cultural materials “can contribute towards the economic development of traditional communities through the establishment of community enterprises, local job creation, skills development, appropriate tourism, and foreign earnings from community products.”[5] In Colombia, for example, small communities rely on craft items for profit because they are the only tradable products.[6] For this reason, intellectual property can play a larger role in the success of developing economies if local artisans and communities grasp the complexities of their use.

Although artists and communities can use trademarks to protect TCEs, there are several less-discussed options that provide specialized advantages. Collective marks, a type of protection that allows associations, rather than individuals, to register a mark, provide one such option. All members of the registering group can use the mark as long as each of their products meets the standards fixed by the group. These marks “are usually defined as signs that distinguish the geographical origin, material, mode of manufacture or other common characteristics of goods or services of different enterprises.”[7] Collective marks are useful for communities in which individuals produce similar products, such as a specific type of textile or pottery. These marks create incentives for local cooperation because a consensus must be reached to decide the fixed standards associated with the mark. The profit possibilities of this type of intellectual property are significant because individuals whose products may not be recognized in the market may join an association with a reputable name. If the collective mark is well-established and trusted among consumers, the market value of the goods branded with the mark will increase, and consumers will have an incentive to purchase these goods.

One example of a collective mark registered in a developing country is Piñas de la Chorrera—Panama. This mark applies to pineapples grown in La Chorrera, a region in Panama renowned for its produce. Pedro Bolivar, a lawyer working with the World Intellectual Property Organization (WIPO) on the project of obtaining and implementing the collective mark, explains, “the idea is that the brand will act as a magnet drawing producers together to increase their agricultural production and improve the export capacity of local farmers.”[8] Because the mark exists, moreover, farmers growing pineapples in any other region of the world cannot associate their products with La Chorrera. This protection is beneficial in cases where the collective name has a positive reputation and where there is a measure of consumer confidence attached to the associated products.

Certification marks also create protection opportunities for individuals who do not wish to register a trademark. “A certification mark is a distinctive sign that guarantees that a product/service meets the standards and characteristics pre-established by the proprietor of the mark.”[9] Unlike collective marks, certification marks can be used by any person who meets the fixed standards of the mark. Membership in the association registering the mark is not required.[10] The FAIRTRADE mark is an example of a certification mark that has experienced widespread international success. When a product bears the FAIRTRADE logo, it signifies that it was produced in a developing country. The mark was registered to “create opportunities for producers and workers who have been economically disadvantaged or marginalized by the conventional trading system.”[11] When producers brand their products with FAIRTRADE, consumers may be more likely to purchase the good because they know the proceeds will benefit the farmers living in developing countries. The FAIRTRADE certification mark demonstrates that a large and diverse group of producers can benefit from intellectual property protections by meeting the standards of a third party association.

A third alternative for protection is a geographical indication (GI). This sign “is used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods.”[12] Creators benefit from linking their products to a GI when the place of origin has a valuable reputation or connotes a desirable quality. Like collective and certification marks, GIs increase the potential for profit because of the recognition attached to the registered mark.

GIs represent another important protection opportunity for traditional artists and communities. TCEs can be successfully protected through the proper use of GIs, especially for “tangible products such as handicrafts that have qualities derived from their geographical origin.”[13] Like collective and certification marks, a GI “act[s] as a quality mark which will play a part in enhancing export markets and revenues.”[14]

One example of a TCE registered as a GI is “Talavera de Puebla” pottery.[15] The guidelines for production of this type of pottery are very specific. “All work must originate in Atlixco, Cholula, Puebla or Tecali—all in the state of Puebla—and the clays must be obtained from natural deposits in the Talavera zone.”[16] There are regulations regarding the types of glazes that can be used on Talavera pottery and the process involved in making pigments for the authentic paints. One reason that GIs are especially useful in protecting TCEs, like Talavera de Puebla pottery, is that they “are granted for products that have a relationship with the land, local resources or the environment.”[17] TCEs in particular are generally tied to these three characteristics making GIs a suitable option for artists livng in these communities.

It is important to note that collective marks, certification marks, and geographical indications do not have inherent market value. In order to create profit opportunities for producers using IP protection, consumers must be informed on the source and quality of the goods using the mark. This can be achieved through a variety of mechanisms, such as marketing and advertising campaigns to publicize the brand. Accordingly, the overall market success of the protected TCEs is proportional to the public consciousness and overall confidence in the mark. Once a brand develops a reputation for producing high quality goods, it becomes even more important for the producers to maintain the consistency of their products by adhering to the fixed standards associated with the mark.

In deciding what mark to use, there are a variety of issues one must consider. First, collective and certification marks are not mutually exclusive and are often times used in conjunction with one another. This occurs because groups registering collective marks must effectively set the standards of the goods and subsequently certify that each product using the mark has met these standards. Certification marks provide a mechanism to do exactly this. Second, certification marks can be used in situations in which collective marks cannot because producers cannot form a collective. This may occur when producers are not geographically close to one another. For this reason, certification marks are the principal way in which goods are protected. The FAIRTRADE mark exemplifies this. Agriculturalists in developing countries who have no communication with one another can affix the FAIRDTRADE mark to their goods if they meet the requirements of the certification mark. Certification marks used in this manner may result in greater brand recognition than alternatives because they can be used by a greater number of producers. Third, although the need for cooperation between producers may be seen as a disadvantage, collective marks may be desired for precisely this reason.

Geographical indications fall into an entirely different category due to the lack of protection they provide internationally. Article 22 of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) only establishes a “minimum standard of protection for all geographical indications.”[18] Although wines and spirits receive a slightly higher level of protection, globally, there are many disputes regarding how to legally protect GIs. For this reason, using GIs in traditional communities can be less advantageous due to the possibility that they will only be recognized locally. Still, GIs can be useful in domestic sales, especially for communities whose products are distinguished by where they were produced. The table below summarizes the key features and relative advantages and disadvantages of collective and certification marks and GIs.

Many traditional artists do not make greater use of intellectual property protection to commercialize their products because they lack the specialized knowledge necessary to utilize the mechanisms available to them. As a result, non-residents commonly own a large percentage of trademark registrations in developing countries. In Colombia, non-residents owned approximately 49% of registered trademarks in 2010.[22] Similarly, in Cambodia, non-residents owned 81% of registered trademarks in 2007.[23] This suggests that knowledge about trademarks and intellectual property rights among local creators is relatively limited. This can lead to a variety of negative consequences for traditional creators, since it enables large transnational companies to dominate markets in developing countries and limits the ability of local brands to compete. Building local brands and informing traditional artists about the importance of intellectual property rights can help remedy this problem.

The International Intellectual Property Institute (IIPI) understands the necessity of educating traditional creators in developing countries about the legal process involved in obtaining intellectual property protection. As a result, IIPI has taken steps to make this information more widespread. In the past two years, IIPI has conducted three workshops, collectively entitled “Harnessing Intellectual Property to Protect and Promote Traditional Arts and Crafts,” aimed at providing them with an understanding of intellectual property concepts so that they can apply these concepts to create successful business strategies. The first workshop, for artists in Central America, took place in Mexico in November 2010; the second, for artists in South America, in Peru in June 2011; and the final, for artists in Southeast Asia, in Cambodia in July 2011. The attendees of the workshops included traditional artists, academics, and government, business, and legal representatives.

The protections discussed in this article create greater profit opportunities for workers in a number of sectors and protect against counterfeiting and other illegal activity. IIPI will continue to educate artisans and creators about the benefits that intellectual property rights protections offer, while working to provide the resources and infrastructure necessary to ensure that artists’ efforts will be successful.

About the author

Emma Cohen is a sophomore at Georgetown University’s School of Foreign Service majoring in Science, Technology and International Affairs with a concentration in Business, Growth and Development. She has worked with a variety of non-profits, and was drawn to IIPI because she wanted to learn more about the connection between intellectual property protection and economic growth in developing countries. In the future, she hopes to work with other organizations invested in promoting international development through creative means.

[1] WIPO, “Trademarks Gate,” http://www.wipo.int.
[2] WIPO, “Understanding Industrial Property,” p. 12.
[3] WIPO, “Intellectual Property and Traditional Cultural Expressions/Folklore,” p. 1.
[4] Ibid.
[5] Ibid., p. 6.
[6] Ibid., p. 7.
[7] WIPO, “Collective Marks”, http://www.wipo.int.
[8] Leire Otaegi, “Panama: Three Marks for Development”, WIPO Magazine, April 2012.
[9] UNIDO, “Adding Value to Traditional Products of Regional Origin,” Certification Mark, 2010.
[10] WIPO, “Certification marks,” http://www.wipo.int.
[11] Fairtrade, “The FAIRTRADE Mark,” Background, http://www.fairtrade.org.
[12] WIPO, “About Geographical Indications,” http://www.wipo.int.
[13] WIPO, “Intellectual Property and Traditional Cultural Expressions/Folklore,” p. 18.
[14] IPR Commission, “The Economic Impact of Geographical Indications” Traditional Knowledge and Geographical Indications, Integrating Intellectual Property Rights and Development Policy.
[15] Daphne Zografos, “Intellectual Property and Traditional Cultural Expressions: IP Strategies in Relation to Branding and Commercialisation.”
[16] Rita Pomade, “Talavera—Mexico’s Earthly Legacy From the City of Angels,” Mexconnect.
[17] Zografos.
[18] “Geographical Indications and TRIPs: 10 Years Later… A roadmap for EU GI holders to get protection in other WTO Members,” O’Conner and Company, Insight Consulting.
[19] WIPO, “International Treaties and Conventions on Intellectual Property.”
[20] Ibid.
[21] USPTO, “Frequently Asked Questions about Trademarks.”
[22] WIPO, “Statistical Country Profiles: Colombia,” Trademark Registrations, WIPO Statistics Database.
[23] WIPO, “Statistical Country Profiles: Cambodia,” Trademark Registrations, WIPO Statistics Database.