Understanding the term expression of traditional culture through the prism of trademark law


There are the various presentations of the past, the narrations made and the facts that have been exposed to the world which may include memorable moments which may relate to the loss of memory that existed. These are the outsourced forms of the artistic forum known as Traditional Cultural Expression (TCE).

The work of indigenous peoples and their traditional communities falls into this category. The term TCE in the international trademark is also referred to as “folklore” and in some countries the term “folklore” is used for their national copyright laws. The term was coined in 1846 by William Thomas which includes manners, customs, observations, superstitions, ballads and proverbs etc. under the term “folklore”. The term traditional cultural expression is two material and immaterial forms. It includes a) verbal expression or symbols like history, epics, legend, tales and riddles etc. b) musical expressions which include songs, instrumental music, violin, etc., c) expression made by action such as dance form, plays, rituals, etc. While intangible expressions include Drawing, Painting, Body Art, Envy, Textile, Jewelery Basket, Dashboard Painting, Rockwork. The immaterial expression is mainly a reflection of the thoughts of sharing traditional knowledge with architectural forms.

Traditional cultural expression reflects the social and cultural context of communities with various career character elements of their community heritage. They are often made by unknown or unidentified authors, or by members of a community or an individual who has been recognized as having the right or given permission to create them in accordance with the customary laws and practices of the community. There are various TCEs that evolve in development and have been recreated at the source of the community, but again.

Rational importance of TCE

the National Intellectual Rights Policy (NIPR), 2016 considered the importance of culture through invention and their intellectual property and by promoting the advancement of culture, art and traditional knowledge by promoting the public interest. The aim of the policy is to reach out to “less visible” creators of intellectual property living in remote rural parts of India. It also explains how tradition and oral knowledge will also preserve the integrity and knowledge of the community under consideration, undermining the traditions of the community while promoting the rich heritage of India in partnership with the participation of the rightful custodians of this knowledge. by giving them incentive and support for their efforts to promote it.

Globalization and technological development, as well as the measurement of impact and TCEs in the life of the Internet, have either allowed TCEs to take root further in the depths or have driven them away from their owners. legitimate. The development has facilitated access to these TCEs beyond their place of origin and thus provided the opportunity to market them even to people who are not the owners of the community. These types of misappropriation threaten the legitimate holders of TCEs and these people are mostly indigenous.

Protection of TCEs under Trademark Law

In the context of trademarks, laws are able to distinguish one person’s goods and services from another’s trademark. The trademark also allows the customer to identify the product as an original product and the goodwill associated with the goods and services. Registration of traditional goods and services marks is protected under article 29 of the mark law, the protection is against infringement of goods and services disturbed and the common law provision that a deception is available where if the mark is not registered, a deception can be adopted by the court.

The collective mark created by a brand image for traditional goods and services such as painting, loom, weaving or any other work etc. the certification mark is given to the person and can be used to protect traditional goods that have cultural significance associated with them. India has a variety of cultures rich in traditional cultural expression, but unlike various other countries like Australia and the Philippines which have a sui generis law. India relies on other laws to protect the same, even the United States of America has separate legislation for its presentation in native communities. India has also used the cause of sui generis right for the protection of traditional cultural expression.

Unconventional trademark

The traditional mark can also be defined as a mark on which it has been protected and which has been identified with the origin of the product. They are usually word marks, device marks, numbers, etc. while unconventional mark is a type of mark that does not fall under the category of conventional mark. It may possess the community abilities to create a form mark or a color mark. capable of distinguishing one person’s search for goods and services from each other, marks must also have the potential and must indicate that the source is distinguishable from another’s goods or services.

Protection of Traditional Cultural Expression through Unconventional Marks

The Trademark Rules provide for the registration of marks under Rule 26(5). The sound mark can be registered by engaging a sound clip with the musical notations, the color mark can also be applied by submitting as a reporter the color combination where the applicant must show the color in the sound which is for registration a very distinct one with a secondary meaning due to continued and genuine usage. For the registration of olfactory marks, there is no provision to date. The scent mark has been heavily debated around the world, and it has its own set of issues for record length. The protection of these marks is not prohibited by Article 15 of the agreements Clarifies that members “may” impose the requirement of visually perspective marketing for the record. In India, under Section 2(1) (ZP) of the Trade Marks Act, 1999 appears in accordance with the travel agreement is a definite agreement, some of them are “graphically represented”. This is an informant huddled in the registration of a scent trademark in India for the traditional market, as the scent may not be able to be represented graphically.

Even if the mark has not been inherited a distinctive character, the mark can apply for a mark if it needs to acquire the distinction due to use for a longer period of time, this mainly applies in the case of color where the color combination is not easily established or inherited acquired distinctly.


TCEs are the product of a relationship to society that suggests they are subject and evolving. It is cultural endeavors that do not exist in a vacuum and from other human development considerations and aspirations, there is a need to understand how innovation in the preservation of TCEs intersects in the consideration equality of the sexes, the perspective of education, including with regard to the transmission of languages ​​in the different knowledge inherited within the community and by sustainable development of this community with these ideas. The idea of ​​the brand as community property has been an effective way to protect traditional cultural expression without encroaching solely on the school’s brand of sight.

Michael J. Chiaramonte