It is the age of the Internet of things and the growth of the modern economy is increasingly hinged on intangible assets. This is more apparent considering the sweeping impact that the fourth industrial revolution driven largely by Artificial Intelligence (“AI”) is already having on the economy. Intangibles like trademarks, copyright, software and other patents, trade secrets, designs – which encompass assets produced from human intellect – continue to need the overarching protection that intellectual property laws provide. It has thus become imperative to examine the nexus between the protection of trademarks and cultural appropriation. In doing so, an argument of cultural appropriation versus cultural appreciation is considered with a view to drawing a distinction between the two concepts.
A trademark as defined by the World Intellectual Property Organization (“WIPO”) is a sign
capable of distinguishing the goods or services of one enterprise (by extension, any entity) from those of other enterprises. Trademarks are protected as Intellectual Property Rights (“IPRs”) in Nigeria primarily under the Trademarks Act1 (“the Trademarks Act”). The Trademarks Act discusses inter alia the requirements for registration, whatregistration protects, what amounts to infringement of a trademark and the remedies available to a Trademark Proprietor whose right has been infringed upon. The provisions of the Act relevant to this discourse are discussed later.
TRADITIONAL CULTURAL EXPRESSIONS AND INDIGENOUS PEOPLES
It is estimated that there are more than 370 million indigenous people spread across 70 countries worldwide. Indigenous peoples, also known as first peoples, first nations, aboriginal peoples or native peoples are culturally distinct ethnic groups who are nativeto a place which has been colonized and settled by a later ethnic group. Indigenous peoples may be described as distinct social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced.
The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (“the Convention”) defines "Cultural Expressions" as: “Expressions that result from the creativity of individuals, groups and societies, and which have cultural content”. The Convention was adopted because the international community realized the urgency for the implementation of international law that would recognize:
1. the distinctive nature of cultural goods, services, and activities as vehicles of identity, values and meaning; and
2. that while cultural goods, services and activities have important economic value, they are not mere commodities or consumer goods that can only be regarded as objects of trade.
TRADITIONAL CULTURAL EXPRESSIONS IN NIGERIA: THE TRADEMARKS ACT & THE COPYRIGHT ACT
The Trademarks Act grants a Trademark Proprietor the exclusive right to the use of that trademark in relation to the goods or services over which the trademark has been registered.
The Trademarks Act further caters to the usage of a trademark so similar to a registered trademark as to likely deceive or cause confusion to consumers by outlawing the registration of the former trademark. With respect to unregistered trademarks, the common law protection (endorsed by Section 3 of the Trademarks Act) of passing off serves to protect marks beyond statute based on acquired goodwill over time by the sheer use of the trademarks in relation to goods or services. Interestingly, the common law and Trademarks Act do not make any reference to traditional cultural expressions at all but implicit in the provisions of the Trademarks Act is the fact that even where a trademark owner has not registered same, – the trademark owner; a cultural community has a right of action against a person who culturally appropriates its brand by passing off goods or services to mislead people into believing they are buying products or services emanating from the trademark owner or community.
The Copyright Act however more directly provides for the recognition and protection of
Traditional Cultural Expressions (“TCEs”) and Traditional Knowledge (“TKs”). The Copyright Act describes “folklore” to mean a group-oriented and tradition-based creation of groups or individuals expressing their cultural and social identity. Folklore under the Copyright Act also includes folk poetry, folk riddles, folk songs, instrumental folk music, folk dances, folk plays, folk art – paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, jewelry, handcrafts, costumes, indigenous textiles and many more. Section 31 of the Copyright Act is aimed at protecting expressions of folklore against reproduction, performance, distribution, adaptations, translations and other transformations where such expressions are made for commercial purposes or outside their traditional or customary context. The Copyright Act introduces the concepts of “fair dealing” and “fair practice” where folklore is to be used publicly. It is obvious that this legislation seeks to protect folklore from exploitation and also preserve the origin and roots of folklore. The Copyright Act empowers the Nigerian Copyright Commission (“NCC") to authorize commercial activities sought to be done in relation to folklore in Nigeria.
On the global plane, a number of international bodies such as WIPO and the African Union [through the African Continental Free Trade Area (“AfCFTA”) Agreement] have also recognized the importance of intellectual property assets as well as the protection of TCEs. Of key importance is Article 8 of the AFCFTA Protocol on Intellectual Property which provides for the protection of Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources. Article 8 specifically makes it an obligation for State Parties to ensure that an application for a trademark which is based on Traditional Cultural Expression will not be registered except such an application is made by the community itself or with the concerned community’s permission. Nigeria signed the AfCFTA Agreement on July 7, 2019, and ratified same on December 5, 2020.
CULTURAL APPROPRIATION VS APPRECIATION
The increasing awareness of the exploitation of things associated with a racial or cultural group has led to the phenomenon - Cultural appropriation, which is the adoption of elements of one culture by members of another culture. Often unavoidably, when multiple cultures come together, cultural appropriation can include exploitation of another culture's religious and cultural traditions, fashion, symbols, language, and music. This can be controversial when members of a dominant culture appropriate from disadvantaged minority cultures. Cultural appropriation is considered harmful by many - and especially by indigenous people working towards cultural preservation, as well as various groups and individuals who advocate for collective intellectual property rights of the originating minority cultures
In recent years, there has been a growing concern about a specific mode of cultural
appropriation - ‘bio-piracy’. Well-known examples of IPRs that have suffered this violation
include a US patent on turmeric for healing wounds, which is common knowledge in India; and patents on basmati rice from India/Pakistan; and ayahuasca used in indigenous Amazonian healing. It has however proved difficult to prevent bio-piracy because IPR regimes are not sufficient to protect TKs.
In the absence of sufficient or comprehensive legal mechanisms for enforcement against cultural appropriation, cultural appreciation appears to be a welcome solution. Cultural appreciation entails honoring the culture, understanding its roots, and recognizing that the culture is of value and importance. Appreciation usually involves learning earnestly about a culture to explore and better understand it. A person who seeks to appreciate a culture does not attempt to hijack it or make representations that imply that the person has created the aspect of the culture they are appropriating. Cultural appreciation can also be described as cultural exchange – which connotes the element of consent. Here, members of different cultures are able to participate in each other’s culture while understand and respect their distinctive positions.
When the American business mogul Kim Kardashian launched her Shapewear line in 2019 and named it “Kimono”, it generated a lot of outrage online and offline. There were many allegations of cultural appropriation. According to the brand’s website, Kimono was a new solution focused approach to shape-enhancing underwear. However, the name choice did not sit right particularly with the Japanese community who alleged that the Shapewear was named after the brand of the traditional Japanese garment, ‘Kimono’. The Japanese garment is a traditional long, baggy garment that has been worn by Japanese women for centuries. One of the reasons for the public outrage was that Kimono Shapewear looked nothing like the Japanese garment. Ms. Kardashian eventually voluntarily changed the name of her Shapewear and withdrew the trademark application in respect of the name ‘Kimono’.
Similarly, it recently came into the limelight that Timbuktu, a fashion brand based in the United Kingdom, successfully registered trademarked the word “Yoruba” as a trademark in the United Kingdom. This also generated a lot of discourse and allegations of cultural appropriation and even illegality. “Yoruba” refers to a very large ethnic group originating from Western Africa and particularly, Nigeria, so the allegations of cultural appropriation are not surprising.
The United Kingdom Trademark Act, 1942 ("the UK Act”) makes allowance for the registration of words including personal names and sounds However, one of the many grounds of absolute
refusal to register a trademark in the UK as provided in Section 3(3) of the UK Act is where the trademark sought to be registered is of such a nature as to deceive the public (for instance as to the nature, quality or geographical origin of the goods or service). It appears though that when Timbuktu, a British clothing retailer applied to register the word “Yoruba” as a trademark in 2015, no opposition was raised after the application was published in the Trademarks Journal, which subsequently resulted in the successful registration of the word.
This registration came to limelight earlier in 2021 after the proprietor of CultureTree, an African cultural centre in London wrote on Twitter that she had attempted to trademark “Yoruba Stars” and claimed she faced a challenged from Timbuktu due to its similarity to the phrase the company had registered. This consequently sparked a social media outrage and a conversation about cultural appropriation. A short while later, it was reported that the opposition had been withdrawn by Timbuktu. Notably, a desktop search conducted on the UK Intellectual Property Office website revealed that Timbuktu’s trademark registration has been surrendered and that “Yoruba Stars” has been successfully registered.
WAYS TO PREVENT CULTURAL APPROPRIATION
It is crucial to explore how to draw a line between cultural appropriation and cultural appreciation. Cultural appreciation transforms into appropriation the moment a person tries to utilize the culture for their own benefit. In appreciating a culture, a person or entity takes the position of a student who is being guided and led by the owners of that culture. Appropriation eliminates this studentship position and portrays the person as being in a position of authority and eventually, in a position of ownership. In appreciating a culture, it is of key importance to always remember that the culture is not one’s and one must steer clear of making representations or assertions that contradict this position.
Proprietor-Communities need to present united fronts whenever issues of cultural appropriation arise with respect to their TCEs or TKs. The Japanese community did this when Ms. Kardashian
launched her Kimono Shapewear. TCEs and TKs after all have communal roots. It is also important for proprietor communities to lodge complaints to the appropriate body where the need arises. In Nigeria, that body is the NCC.
For brands that are truly desirous of breaking away from appropriating other people’s culture, it is important for proprietors to conduct due diligence before launching products. It is almost impossible for brands that have worldwide presence and extensive resources to conduct appropriate searches and not discover that a step they might be taking will amount to cultural appropriation. It is however not far-fetched to say that in most cases, appropriation by these brands is a deliberate act of premeditated exploitation. Afterall, promotion and publicity is naturally the consequence of objection by communities to such appropriation. Nonetheless, as a guide, brands should be conscious of the importance of social capital and the effects of consistent negative uproar against the goodwill of their businesses.
CONCLUSION
Legal protection of TCEs needs to be more comprehensive and stringent, nationally and
internationally. It appears that there is more protection for TCEs and TKs through moral
and social outrage than through legal mechanisms, especially on a global plane. As a starting point, there is need for legislative reform. For instance, the monetary penalty for the infringement of folklore as contained in Section 33 of the Copyrights Act needs to be upscaled to match the current value of the Nigerian currency. 7 This will deter members of the public from contravening the relevant provisions of the Copyrights Act. Additionally, the mode of compensation to proprietor-communities should be laid down statutorily. As it is, the Copyrights Act in Section 32 provides that a person who breaches the provisions of Section 31 will be liable to the NCC in damages and other remedies the court deems fit to make.
Further, more enforcement mechanisms should be provided in Nigerian legislations to inter alia,
empower proprietor-communities to institute actions against individuals and corporate bodies who infringe on the proprietor-communities’ TCEs and TKs.
Finally, in the absence of effective laws, moral consciousness is essential to our cause. Public sensitization of the importance of the protection of TCEs and TKs from the fangs of cultural appropriators should be carried out by the NCC and stakeholders. Knowledge is key – public sensitization equips proprietor-communities with the requisite information to ensure they are aware of their IPRs and makes it clear that cultural appropriation is not only intolerable but is also illegal. What this means is that individuals and corporate entities need to be morally conscious and pay attention to culturally sensitive materials when applying for trademark registrations. Conducting diligent and expansive searches will go a long way in ensuring this is done.
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