By Tracey Mosley, Borden Ladner Gervais
Traditional knowledge (or TK as it is known in short form) is commonly used to define the know-how or cultural practices passed from one generation of indigenous people to the next. The forms within which TK can exist, be recognised, and passed forward are limitless but certainly include knowledge passed orally, through dance, art, symbolism, song, horticulture or craft. TK can be both practical and spiritual or even sacred in nature, a source of wisdom meaningful to a group, or essential to the personal growth of an individual.
At its most basic, the purpose of trade mark law is to recognise the association of a chosen mark, which can consist of words and designs, or both, with goods or services, the purpose of the association being to distinguish those goods or services from the goods or services offered by others under other trade marks.
Actual association of a trade mark with goods or services (known as use of a trade mark), or the intention to make such an association (known as intention to use a trade mark), can give rise to all manner of commercial rights, including the right to license the use of the mark to others, the right to enforce the exclusive right to use the mark, and the right to develop and assert goodwill in the trade mark. In Canada, some of the rights derived from the association of a trade mark with goods or services can only be established through registration of the trade mark under the Canadian Trade-marks Act, but many other rights can be established merely through use of the trade mark.
Traditional knowledge is increasingly becoming recognised within the mainstream, with a considerable and growing alignment to IP law. In respect of trade marks, the World Intellectual Property Organization (WIPO), a United Nations agency self-described as "dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest" primarily embraces trade mark rights created through commercial activity, but its mandate in respect of the public interest and contributing to economic development has seen it give considerable effort to developing a draft treaty on traditional knowledge as it intersects with intellectual property, including trade mark law. The Government of Canada and Canada's first nations are actively involved in the development of the draft treaty.
Marrying TK to trade mark law for the purposes of registering an element of it as a trade mark is, however, no simple task. Trade mark law presumes a date-definable point of adoption of a trade mark by the deliberate creation or choosing of a mark for the purposes of actually using it as a trade mark (associating it with the goods or services of the adopter), while a specific form of TK may have no definable point of adoption, given its collective nature, let alone that it may be centuries old. Nonetheless, in Canada, trade mark law may provide a means to prevent the unwanted appropriation of TK by those not authorised to engage in it, let alone commercialise it, even if registering TK as a trade mark may prove a challenge.
For example, consideration can be given to various sections of the Canadian Trade-marks Act if a group believes a form of its traditional knowledge is being misused by another.
Provisions of the Act which may provide redress include: Section 7, which addresses issues of passing off which could possibly be used to enforce rights in unregistered trade marks; various subsections of Section 9 that disallow scandalous, obscene or immoral words or devices or guard against falsely suggesting a connection with a living individual, and may be broad enough to encompass the misuse of an otherwise perfectly acceptable form of TK which becomes scandalous or falsely associated with a living individual when misused by an unauthorised party; Section 22, which disallows use of a registered trade mark by a person other than its owner in such a way that depreciates the value of the goodwill in the mark, that is, damaging the likelihood that customers will continue to seek goods or services under the trade mark; and Section 38, which allows for opposition to trade mark applications on file with the Canadian Trade-marks Office. Which sections may be operable will depend on the form of the TK being misused and whether the TK itself may be recognisable as a trade mark or, indeed, registered under the Act.
In summary, the Canadian Trade-marks Act, as currently written, may not at first glance be seen as sufficiently broad to allow for registration of elements of traditional knowledge and the protection against their misuse, but as awareness of the existence of traditional knowledge and the need for its respect grows, the Canadian Trade-marks Act may well have a role to play.