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INTA 2022: Design industry must respect indigenous IP

Esther Aburto Olague (right) showing a belt design that had been culturally appropriated

Panellists from New York, Mexico City and Geneva discussed how brands could avoid cultural appropriation and whether broader legal change was needed

Speakers at INTA’s 2022 Annual Meeting in Washington DC this morning explored how to increase awareness of indigenous intellectual property and traditional cultural expression in the design industry.

The panellists noted that there had been several social media controversies sparked by cases in which designers or companies had appropriated terminology or designs from cultures that weren’t their own.

Pamela Weinstock, a legal consultant in New York (pictured left), pointed out that Kim Kardashian had named her shapewear brand ‘Kimono Intimates’, a riff of the celebrity’s first name. But some people felt Kardashian had disrespected the traditional Japanese garment.

Kardashian apologised and later changed the name of her brand – but she was far from the only designer to have made cultural missteps in fashion, said the speakers. 

They argued that brands and designers should make greater efforts to avoid cultural appropriation, particularly of indigenous cultures, not only because failing to do so could spark a social media firestorm, but because it was the right thing to do.

No laws

The speakers pointed out that existing laws often didn’t thwart the appropriation of traditional cultural expressions. Copyright, they noted, lasted 70 years past the end of the creator’s life, but some designs had been around a lot longer.

It was especially important that brands put policies in place to stop themselves becoming part of the problem, they said.

Weinstock said one of the best things designers could do was ask permission and give attribution and credit where due.

They could also develop partnerships to allow communities to financially benefit from products that used their names or designs.

She noted that just as companies educated their designers on how to avoid infringing other designs, they should instruct them on how to avoid cultural appropriation.

The speakers said it was also important to educate designers throughout the design process and not just at the end, when changing elements was the most costly, said Weinstock.

She added that designers often went on inspiration trips around the world – and although this was a good thing, they should be mindful about cultural appropriation while there.

Changing for good

Even though their existing laws didn’t always prevent appropriation of traditional cultural expression, countries had made some efforts to better protect indigenous IP, said speakers.

Esther Aburto Olague, managing partner at OZM Legal & Business Consulting Services in Mexico City, said New Zealand had one of the best systems for protecting indigenous rights. A commission in the country could reject trademark applications if they violated the Māori culture in any way.

But there had also been some calls for longstanding international change, other panellists opined.

Wend Wendland, director of the traditional knowledge division at WIPO in Geneva, said a lot of people felt that indigenous heritage was not well-served by the traditional IP system.

He noted that governments as well as indigenous communities in Africa, Latin America and Asia-Pacific have asked for change, noting that WIPO was also in talks to negotiate a new legal instrument that would provide a specific form of IP for indigenous knowledge and cultural expression.

“This is extremely interesting, enormously complicated and controversial, and would be the biggest event in international IP since TRIPS,” said Wendland.

But he noted that it was unclear whether this proposal would come to fruition because it had been in the works for several years without any end in sight.

Michael Pampalone, founder of Dahan Pampalone in New York, moderated the panel.

The INTA Annual Meeting is being held this week at the Walter E Washington Convention Center in Washington DC.

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