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Understanding the term Traditional Culture Expression Through the lens of Trademark Law


By

Sakshi Shairwal

Iesha Sharma


Introduction


There are the various presentations of the past, the narrations made, and the facts that were exposed to the world that may include some memorable moments that may concern the loss of the memory that existed. These are the externalized forms of the artistic forum known as the Traditional Cultural Expression (TCE).


The indigenous people and their traditional communities’ work come under this category. The term Traditional Cultural expression in the international mark is also referred to as the “folklore” and in some of the nations, the term “folklore” is referred to using for their national copyright laws. The term was coined in the year 1846 by William Thomas, who includes mannerisms, customs, observations, superstitions, ballads and proverbs, and so on under the term “folklore”. The term traditional cultural expression is in two forms tangible and intangible. That includes the a) Verbal Expression or symbols like the story, epics, Legend, tales, and riddles, etc. b) Musical Expressions that include songs, instrumental music, violin, etc., c) Expression made by an action like dance form, plays, rituals, etc, Whereas intangible expressions include drawing, painting body art, craving, textile, jewelry basket, leader board painting, Rockwork. The intangible expression is mainly a reflection of the thoughts of the traditional knowledge sharing with architectural forms.


The traditional cultural expression reflects the communities social and cultural background with various career character elements of their community’s Heritage. They are often made by the authors who are unknown or unidentified, or by the members of a community or individual that has been recognized as having the right or has been given permission to create them in accordance with the customary laws and practices of the community. There are various traditional cultural expressions that are evolving in development and have been recreated within the source of the community but time in again.


Rationale importance of TCE


The National intellectual right policy (NIPR), 2016 has considered the importance of the culture through the invention and their intellectual property and with promoting the advancement in the culture, art, and traditional knowledge by promoting the public interest. The objective of the policy is to reach out to the “lesser visible” intellectual property creators living in remote rural India. It also talks about how oral tradition and knowledge will also be preserving the integrity and the knowledge of the considered community compromising the traditions of the community while promoting the rich heritage of India in partnership with the participation of the rightful custodians of such knowledge by giving them an incentive and support for their efforts to promote it.


Globalization and technological development and also to measure the impact and traditional cultural expressions in the life of the Internet have either allowed the TCEs to further root themselves in the deep or have drawn them away from their rightful custodial owners. The development has made easy access to these TCEs beyond their place of origin and thus it has given the opportunity for commercialization even to those people who are not the owners of the community. These types of misappropriation have been leading the threat to the rightful custodians of TCEs and these people are mostly indigenous people.


TCEs Protection under Trademark Law


Under Trademark, laws are capable of distinguishing the goods and services of one person from another Trademark. Trademark also enables the customer to identify the product as an original product and the Goodwill associated with the goods and services. The registration of Trademark of traditional goods and services are being protected under section 29 of the Trademark act the protection is against the infringement of disturbed goods and services and the common law provision that a passing off is available where if Trademark is not registered then a passing off can be passed by the court.


The collective mark that is being created by a brand image for traditional goods and services such as for the painting, Handloom, weaving, or any work, etc the certification mark is given to the person and it can be used to protect the traditional goods that are having and cultural significance associated with it. India has a variety of rich cultures of traditional cultural expression but unlike various other countries like Australia, and the Philippines which have sui generis law. India relies on other laws to protect the same even the United States of America has separate legislation for its presentation in the indigenous communities. India also used the cause of sui generis law for the protection of traditional cultural expression.


Non-Conventional Trademark


The traditional Trademark can also be defined as a mark it has been protected at that has been identified with the origin of the product. These are the marker usually word marks, device marks, numerical, etc whereas unconventional Trademark is a type of a Trademark that does not fall in the category of conventional trademark it may possess the communities abilities to make a shape mark or a color mark it being able to distinguish search of the goods and services of one person from one another marks should also have the potential and should indicate that source there in distinguishes from the goods or services from another.


Protection of Traditional Cultural Expression through Non-Conventional Trademark


The trademark rules provide the registration for marks under Rule 26(5). The sounds mark can be registered by committing a sound clip with the musical notations, the color mark can also be applied in submitting as a reporter the combination of the colors where the applicant needs to show the color in the sound that is for registration a very distinct with and secondary meaning due to continuous bonafide usage. For registration of the smell marks, there is no provision to date. The smell mark has been heavily debated around the world and it has its own set of issues for the term of registration. The protection of such marks is not barred under Article 15 of the agreements States that the members ‘may’ impose the requirement of marketing visually perspective for the registration. In India, Under Section 2(1) (ZP) of the Trademark Act, 1999 appears in compliance with trips agreement is defined agreement some of them ‘represented graphically’ this is an informant huddled in registration of smell mark in India for the traditional market because smell may not be capable for graphically represented.


Even if the mark has been not in inherited distinctive, the brand can apply for a Trademark if it requires acquiring the distinctness due to being used for a longer period of time this mostly applies in the case of color where the color combination is not easy to be established or inherited acquired distinctively.


Conclusion


The traditional cultural expressions are the product of relation to the society which suggests that they are subjected and evolving. These are the cultural endeavors do not exist in a vacuum and from other considerations, and aspirations in human development it is needed to understand how preservation innovation of traditional cultural expressions intersect in the consideration for the gender equality, education perspective, including in relation to the transmission of the languages in different knowledge inherited within the community and per sustainable development of this community with these ideas. The idea of the trademark as a property of the community has been an effective way to protect the traditional cultural expression without stepping on the school of view trademark only.





The article first published on Lexology.com and the same can be accessed here.



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