Measures to prevent registration of trade marks and designs using Indigenous Knowledge without consent or if offensive to Indigenous people

Issue summary

Trade marks applications can be rejected if they're ‘scandalous or contrary to law’ and designs applications are also checked for ‘scandalous’ content. 

However, there's also no mechanism for particular consideration of whether Aboriginal or Torres Strait Islander people have been consulted or consented to the use of their Indigenous Knowledge in an application. 

Under this proposal, IP Australia is exploring measures to prevent registration of trade marks and designs using Indigenous Knowledge without consent or if offensive to Indigenous people.

History

• Policy development 8 August 2019

Comments

Recently, IP Australia released a research paper looking at Indigenous Protocols and Processes of Consent relevant to Trade Marks produced by the Indigenous-owned legal firm Terri Janke and Company. The paper looks at existing Indigenous protocols and consent processes, as part of exploring how they could relate to trade mark processes. You are invited to submit preliminary feedback or nominate your interest in formal consultations on this proposal using the form below. 

There are a range of questions to consider in designing and implementing options for trade marks and consent such as:

• Who is the appropriate cultural authority to provide consent to use IK in a trade mark? A community-based Indigenous organisation?
• What sort of approval, if any, should a native title holder/Traditional Owner have to use their language in a trade mark? 
• What type of consent models are there?

Other relevant papers include:

• Consultation Report – the Protection of Indigenous Knowledge in the Intellectual Property System. This report summarises stakeholders’ feedback received in our 2018-19 consultation on Indigenous Knowledge issues.
• Indigenous Knowledge: Issues for protection and management – a paper produced by the Indigenous owned legal firm Terri Janke and Company for IP Australia and the Department of Industry, Science, Energy and Resources.

See also IDs 103 and 105.