Trademarks and Indigenous Knowledge: Protecting Tribal and Folk Names

There has been a marked increase of businesses in India over the past several years, to capitalize upon India’s cultural and ethnic diversity and heritage. Many of these businesses are utilizing names, symbols, or expressions that are tied to tribal communities and practices or to folk traditions and practices, as trademarks. While it’s quite common to see this in businesses originating from fashion, cosmetics, or craft stores, various questions arise with respect to the legitimacy or the ethics of so very often trademarking these names. To what extent is the trademark protection itself a recognition of and a commercialization of knowledge? Is the protection itself establishing a modern legal framework on behalf of traditional knowledge? Or is it an instance of cultural appropriation that commodifies the identity of communities with very little or no resources, or legal literacy, to protect themselves?

This blog seeks to explore the complicated crossroads of trademark law and indigenous knowledge (IK) within India. It seeks to analyze how the current legal framework operates, its limitations in relation to IK, the ethical implications of commercializing IK and the increased need for reform. More specifically, it will analyze celebration and use of tribal names and folk arts/artists as trademarks is misappropriation or if law provides true protection and recognition of these traditional identities.

The Commercial Use of Tribal and Folk Names: A Growing Trend

India is a country of rich cultural variety, boasting over 700 officially-designated Scheduled Tribes and innumerable folk art forms, such as Warli, Gond, Madhubani, and Pattachitra, and more. Cultural tourism, ethical fashion label, and indigenous, indigenous-inspired branding have created opportunites for traditional practices and folk art to be part of commercial storytelling. Businesses are using terms like “Banjara,” “Bhil Art,” “Kalbelia,” “Santhal,” or “Madhubani” as brand names for apparel, home décor, cosmetics, or even digital platforms. 

Most of these terms have not been developed or registered by the communities they represent. Many widely known, metro-based businesses will obtain trademark registrations over these terms, thus obtaining a monopoly position on their commercial use. This raises an extremely disturbing proposition: it may prevent indigenous peoples from using these terms, terms that ultimately define their very identity, if they are registered as trademarks by entities to which they have no connection.

The Indian Trade Marks Act, 1999 and the Absence of Cultural Sensitivity

While the Indian Trade Marks Act, 1999 mentions different forms of trademarks, including words, symbols, logos, names, and even non-traditional marks like sounds and colors that can distinguish goods or services in the market, the section 9 of the Act lists absolute grounds for refusal of registration. These include the prohibitions that a mark should not be descriptive, of a generic nature, deceptive, or against public morality. It should be noted that the Act makes no explicit reference to prohibiting registering a term which relates to an indigenous community, folk art or traditional expressions unless it can be established that the mark is misleading or causes confusion.

Therefore, a company could register “Madhubani” or “Warli” for its line of T-shirts or mugs, unless an objection were raised. While these terms exist in the trademark system as any other commercial sign, they fail to account for the term as a carrier of collective cultural identity or collective cultural heritage, leaving open the unique situation where certain culturally significant terms can be appropriated by private actors without any benefit or acknowledgement to the community.

Furthermore, there is no process under the Trade Marks Act for community opposition unless a formal Notice of Opposition is made. However, many tribal and rural communities do not have either the awareness of their rights in IP law or the availability of legal resources to oppose trademark applications.

Case Studies: When Cultural Names Become Private Property

An example often cited in this context is the registration of “Warli” by private individuals/entities as a brand across a range of goods while Warli painting and artwork is a community tradition and oral history belonging to the Warli tribal community in Maharashtra. Likewise, “Madhubani”, which refers to a painting and art form with a history of centuries from Bihar, has been registered as a brand by third-party brands in everything from apparel to stationary. The communities that created and sustained these art traditions over generations are not only uncredited but sometimes then need to get permission or pay royalties to use their own name in commerce. 

Another example is using tribal names such as “Banjara” (a nomadic community located in Rajasthan, Telangana etc) as a style of fashion brand. Although this use might appear to acknowledge and celebrate tribal culture, using a tribal name in a brand could easily become a form of cultural commodification, especially when the brand has no connections to the community regarding the ethical or commercial fabric of marketing and selling their culture or heritage cross-border.

These examples show that when no means of safeguard exist, the trademark regime will facilitate the privatization and commodification of what is essentially some collective cultural heritage.

The Role of the Geographical Indications (GI) Act and Its Limitations

The Geographical Indications of Goods (Registration and Protection) Act 1999 does provide a more community based approach. The GI system differs from trademarks since trademarks may be owned by individuals or companies, while GIs protect products with characteristics based on location. The quality and reputation of a GI product originates from its geographical source. Several folk arts and handicrafts – Madhubani Painting, Pochampally Ikat, Channapatna Toys, Kullu Shawls to name a few – have been registered as GIs.

GIs are not an adequate substitute for trademark protection for several reasons. First, GIs protect a product, not a name or identity or culture; it is often difficult to separate product from identity and culture. Second, GI rights are generally managed on behalf of the community collectively by cooperatives or associations that are often State run, and actual artisan craft good value may not be fairly distributed to artisans. Furthermore, GIs cannot prevent someone from registering a similar term or trademark for a product in a different class of goods, unless there is a registered overlap in goods.

While GIs do recognize and promote the values of traditional skills and goods, GIs do not prevent the exploitation of terms or names of cultural significance even if those names have a GI registration, as long as another commodity is used in a marketing capacity or branding effort outside the category of the registered GI product. Therefore, the GI system relies on product identity and culture instead of community ownership, crafting an even more fragmented and, often under effective system for protecting indigenous knowledge rights within an IP framework.

Ethical Considerations: Consent, Benefit Sharing, and Cultural Appropriation

In addition to a legal analysis, there is an ethical question regarding the use of indigenous or folk names in branding. Is it ethical for a business to profit off or use tribal or folk culture without involvement from the communities? Can it ever be done in a respectful and beneficial way, or is that always exploitative? Many cultural scholars and artists would agree that using words, like the example of “Kalbelia,” without community involvement turns the use of tribes’ names or expressions into cultural appropriation: these terms and expressions are taken from a culture not one’s own, with no permission and not only by a more dominant culture but also by someone profiting from it.  

In this understanding, trademarking “Kalbelia” for a luxury brand is not honoring ‘Kalbelia’, and not really a tribute, but a move to appropriate identity and economic value from an oppressed culture. The Native American Nations typically only own their identity and use of it, because this is usually not being monetized – all other things they have had interest in monetizing, from stories, sacrifice, traditions, and land have been taken by colonizers.  

There are also questions of benefit sharing. If any business derives value from tribal branding, shouldn’t they also benefit that community?

Ethical models of branding promote community licensing or co-branding, so that the community has some ownership, or can receive some level of royalties. But none of these ideas do not work unless there is community engagement, transparency, and most importantly, prior informed consent is included in the process, but these things are usually not practiced.

Can Indigenous Communities Use Trademark Law for Protection?

On a more positive note, while many Aboriginal communities have experienced trademark infringement and abuse, they may also use trademark protections in similar ways to defend themselves, assuming they receive legal literacy, representation and infrastructure. 

Groups can form cooperative organizations or cultural associations and trademarks collectively. For example, the Toda people in Nilgiris have trademarked their embroidery with a collective trademark, and Lambani artisans in Karnataka have most recently put their mirror work in brand with a plan for community ownership and control. These cases give us hope that, with adequate support and organization, trademark law can be used as a tool of cultural preservation and community empowerment, rather than simply appropriation. 

However, these are still isolated instances. For the vast majority of Aboriginal communities in India, access to the trademark system is extremely difficult. Filing fees, complicated legal processes, and language barriers, to name a few, are common issues. More fundamentally, the idea of ownership in trademark ownership that is singular in nature often runs counter to understanding All Indian Indigenous knowledge as an even more collective idea; that knowledge is not owned or ‘created’ by one creator, but is most often distributed and shared across people, born from past generations and passed down through generations of Indigenous peoples.

The Need for Legal Reform: Toward Culturally Sensitive Trademark Law

As traditional culture becomes increasingly commercialized, there is an urgent need to reform India’s trademark law to be more culturally aware and to factor in heritage rights. Proposals could include: 

• Amending Section 9 of the Trade Marks Act to prevent the registration of the names of tribal groups or indigenous communities or culturally significant names, without the consent of the proper community representative body. 
• A database of culturally significant words, similar to the “Traditional Knowledge Digital Library” that has been created for medicinal knowledge, for trademark examiners to refer to for the registration process. 
• Providing fast-track opposition rights, sui motu powers or objections to government bodies such as the Tribal Ministry and Ministry of Culture, for them to challenge an inappropriate trademark application.
• Making it cheaper and easier for communities to register trademarks by subsidizing, creating simpler processes and access to legal support for indigenous groups who want their name or art form protected.
• Introducing share of benefits alongside community licensing models where commercial organizations would need to enter into MOUs with community organization prior to bringing branding using culturally significant references to market.  

Such changes would move India’s IP system further toward social justice and inclusive development and assist in establishing India’s constitutional commitment to protect Scheduled Tribes under Articles 244 and 275.

International Perspectives and Lessons for India

Countries around the world have started to recognize the need to protect traditional knowledge and cultural expressions through intellectual property systems. The World Intellectual Property Organization (WIPO) has spent years working on an internationally recognized legal instrument to protect traditional cultural expression (TCEs). Countries such as New Zealand, Peru, and Australia have began the process of recognizing Maori or Aboriginal symbols and names as meriting special protections.

In New Zealand example, the Māori were given the right to block certain trade mark registrations if they could be proven as offensive or culturally inappropriate, through a formal consultative process. This trial included some form of prior informed consent, to deter economic exploitation of the traditional cultural expression.

India, as one of the most culturally diverse countries, should take cues from such models, and be a frontrunner in developing a culturally sensitive trademarking framework that respects indigenous rights.

Conclusion: From Appropriation to Empowerment

The tension between legitimacy and exploitation in the use of tribal, folk names by businesses in India lies somewhere between appropriation and ownership. On the one hand, legitimizing an indigenous culture in terms of branding can provide international visibility to dying forms of art and cultural traditions. On the other hand, if the person or business name is used without consent, with a lack of participation, or is not providing benefit to those communities, it is a process of appropriation and stripping legal rights away from an entire culture.

Indian trademark law, as it exists at this moment, does not provide the sensitivity and/or framework to go through these discussions. If India does not reform this, trademark law runs the risk of being a vehicle for private actors to commodify community identity. However, if protections are properly designed on top of legal and ethical safeguards, trademarks can also be powerful means to preserve, promote, and vest economic agency back to indigenous communities.

The issue is not whether a business should use folk or tribal names but how it gets there and for whose benefit. Until the law can firmly and equitably address this concern, the dance between protection and exploitation will continue to evolve in Trademark Registers, courts, and the community.

Author:– Kavya Shahi, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.