Stakeholders have identified considerations when using indigenous cultural properties for brands and other commercial purposes.

The panellists at the INTA 2024 session on “The Intersection of Branding and Indigenous Rights” said that despite the lack of a binding, international agreement governing indigenous cultural and intellectual properties, brands and their representatives should still exercise caution when using traditional cultural expressions (TCEs) and traditional knowledge (TKs) for profit.

Susan Anthony, attorney advisor at the United States Patent and Trademark Office in Washington; Monique Couture, a partner at Gowling WLG in Ottawa, Ontario; Joshua Hopping, director of operations, brand protection, at Huski.ai in San Jose; and Trevor Reed, a professor of law at Arizona State University in Phoenix; said TCEs could be traditional ceremonies, music, songs, paintings, sculptures, words, logos, cultural performance, literary works, handicrafts, architecture, indigenous languages and traditional sports.

TKs, on the other hand, are know-hows, skills, and practices developed, sustained and passed on from generation to generation within a community that often forms part of its cultural or spiritual identity. These could also be community agricultural, scientific, technical, ecological and medical knowledge.

“There is no international agreement [on TCE and TK] or probably any agreement on any one country, although I am proud to say that the U.S. government issued a document titled Guidance For Federal Governments and Agencies on Indigenous Knowledge,” Anthony said, reiterating that there is “no internationally agreed-upon definition” for TCEs and TKs.

The panel noted that TCEs and TKs could also belong to an individual or a collective group, necessitating conversation with more community members.

“We’re always very focused on the idea of who owns this right. [But in this case], there’s the idea of collective ownership,” Couture said.

They said that brands should also consider that though many indigenous communities are interested in using their culture in commerce, others are not.

Indigenous communities should also give consent before a cultural property is used commercially.

“You have to talk to multiple people in the community before you move forward in the market so you know you have permission,” Hopping, a member of the Cherokee Nation, added.

The panel noted that consultation with indigenous governments or a group of recognised community stakeholders should also occur even if the brand is already working with a community member.

“[The] best practice is to consult with indigenous communities regarding a cultural property to identify ownership and required standards for the use of their cultural materials,” said Jake Wharton, a partner at Womble Bond Dickinson in Winston-Salem, North Carolina, as he moderated the panel.

Anthony said there should always be cultural considerations when moving forward with any indigenous-related work, be it for individual use or for the use of a brand.

“You have to include the culture concept when you start the conversation,” she said. “You must first do the work; just the intent not to be offensive is not enough.”

– Charlee C. Delavin, reporting from Atlanta