Nicolás Gutiérrez
IP Expert – Latin America IP SME Helpdesk

One aspect of intellectual property in Latin America, which is often overlooked especially by European entrepreneurs, is the relationship between IP rights and the rights of indigenous communities over their culture and traditional knowledge. While this topic rarely makes the front page, it is worth keeping in mind when developing products and commercialisation plans for Latin America.

This question was brought to the fore last year in a case involving Nike and the indigenous community of Gunayala in Panama. Nike had developed a new pair of shoes with a design which included drawings eerily similar to the Gunayala’s traditional “Mola” pattern featuring colourful geometric and figurative drawings. The Gunayala people complained about the use of their cultural heritage by Nike for a commercial purpose without their consent. Nike, therefore, decided to cancel the launch of this pair of shoes and with good reason: Panamanian law recognises and protects the collective intellectual property of its indigenous communities over their traditional knowledge and craftsmanship which can therefore not be used without their consent.

While Panamanian law on the protection of the collective intellectual property rights of indigenous peoples is particularly far-reaching, and the national laws on intellectual property are not harmonised across Latin American countries, it is not the only one to grant special protection to the cultural heritage of the indigenous people of the continent. For example, Peru, Costa Rica, Brazil and Venezuela all have enacted specific laws which recognise the indigenous communities’ rights over their traditional knowledge which can therefore not be appropriated and used commercially by third parties without their consent.

These national laws protecting the cultural heritage of indigenous communities may protect the knowledge of many different sorts, from the pattern on clothing to plant-based remedies. Most of these national laws focus or emphasize on the protection of the traditional knowledge of indigenous people that is derived from the local biological resources. Therefore, one sector for which these laws should be of particular concern is that of agriculture and plant-based innovation. EU SMEs the activities of which involve the use of plants (medicinal or not) should be careful when it comes to such use, or the securing of a right over a plant variety, or even the patenting of treatments which involve using natural resources from Latin America.

Several states have put in substantial strong restrictions to the use of local plants in commerce and in the patentability of processes related to them, to protect indigenous communities from what is commonly called “biopiracy”. Biopiracy consists in third parties obtaining a patent or a plant variety right involving natural resources which were already known to indigenous communities and used by them, thereby obtaining an exclusive right over something which these communities already had beforehand but never protected. In order to prevent this, the four-member states of the Andean Community Colombia, Ecuador, Peru and Bolivia have established that were a claimed invention involves the use of the traditional knowledge of a local community, a certified written consent from said community must be obtained. In the absence of such consent, no patent will be granted.

Additionally, it should be noted that there also exist specific restrictions regarding the signs which can be registered as a trade mark for use in commerce in some countries. Panamanian, Bolivian, Peruvian and Colombian trade mark laws all stipulate that one may not register any sign which consists in the name, distinctive words, letters, characters or signs used by indigenous communities without the express agreement of the relevant communities.

Effects back home

Furthermore, European SMEs should also be aware that obtaining and enforcing IP rights over elements which involve the use of traditional knowledge of indigenous communities in Latin America may prove difficult as well back home. Peru, for example, has set up a commission dedicated to the protection of the rights of said communities against patent applications abroad which use their collective intellectual property: this commission has proven quite active and has for example managed to have several patents using plants native to the Andes region and used by indigenous communities invalidated in Europe or Japan.

Finally, and as the fashion label Antik Batik found out, enforcing rights against copycats may prove complicated in the fashion industry when using designs “borrowed” from indigenous communities. The fashion label sued a competitor for copyright infringement over the use of a similar motif on clothes, but was denied any copyright over the said motif since it was already in itself largely a copy of the traditional costumes of the Mixe community in Mexico. Antik Batik could therefore not claim any property rights over the motif and lost the case.

Conclusion

In the light of the above, and keeping in mind that there exists in several countries a push for the introduction of laws protecting the immaterial property of indigenous communities where they do not already exist, EU SMEs should be careful in using traditional knowledge or distinctive signs of Latin American indigenous communities. It is best to avoid using such elements, or otherwise to seek specialised advice from a local counsel which will be able to walk you through the intricacies of the national law on this thorny issue.

Some countries, such as Panama and Peru all have registers which list protected traditional knowledge or customs which are protected as the intellectual property of local communities and can therefore not be freely copied. If you are using signs, motifs or knowledge which you know are coming from these areas, you should at least check whether such register exists in the country of origin of the indigenous community, and that these elements are not already listed in these registers.

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