“Ask Me No Questions”: The Struggle for Disclosure of Cultural and Genetic Resource Utilization in Design

Margo A. Bagley · 20 Vand. J. Ent. & Tech. 975

Abstract

New issues relating to the intersection of design protection and cultural and genetic resource utilization are arising from the confluence of an increased interest in design protection, the sustained allure of exotic cultural expressions, and novel uses of biological and genetic resources in crafting the appearance of articles protected by industrial design rights. As awareness of the many ways in which cultural and genetic resource use and misappropriation can occur is evolving, some developing countries have begun exploring the appropriateness of—and in some cases even instituting—a requirement that a designer disclose the origin of traditional cultural expressions, traditional knowledge, and biological or genetic resources used in creating a design in an industrial design application.

This development has become a focal point in the negotiation of a draft Design Law Treaty (DLT) in the World Intellectual Property Organization Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications. The DLT is expected to make it easier to obtain design protection globally by limiting domestic design registration requirements. Currently, a controversy exists over an African Group proposal to allow policy space in the draft DLT for countries to be able to require design applicants to disclose the origin of traditional cultural expressions, traditional knowledge, and biological or genetic resources used in creating protectable designs.

The African Group proposal is optional—not mandatory—for countries to adopt. At a minimum, parties to the African Regional Intellectual Property Organization’s Swakopmund Protocol will need such policy space to comply with obligations embedded in that agreement. The need for domestic and international policy coherence and mutual supportiveness in relation to cultural and genetic resource protection issues is also likely to lead additional countries to desire such flexibility in the future as technology expands the ways these resources can be used and monetized in industrial design regimes.

This Article focuses on that controversy. It highlights possible justifications countries may have for desiring the flexibility to impose disclosure requirements on design protection applicants and explores broader ramifications of the dispute for policy coherence and mutual supportiveness goals in relation to protecting cultural and genetic resources.