New designs underlie the heart of fashion. The creative and imaginative design process is the engine that continuously pushes fashion to move forward, towards new frontiers. Since design is an outcome of the creative process, intellectual property becomes the tool capable of protecting these new designs. However, very often, the design industry stays short of effectively protecting them. Sometimes because they are short lived, others because those working in the industry lack the skill to properly choose the right IP tool to protect a specific design. In this process of producing new designs, and the increasing pressure for originality, moved by the markets; designers are looking to more remote sources in order to get inspiration. Fashion has thus turned to look into the vast heritage of traditional knowledge (TK). A reliable source of ideas and inspiration that is not new; because fashion has since ancient times drawn from it. TK encompasses practices as diverse as: the skills in embroidering Venetian lace, those to weave silk in Assam or the elaboration of headpieces by the American Indians.

All of them are used as inspiration and may form part of designs and fashion pieces all around the world. Specific examples of the use of TK by fashion over the last one hundred years are: The harem pants and tunics of the 1910s by famous French designer Paul Poiret, the beaded and feathered “African collection”, of 1967, by Yves Saint Laurent, and the stylized Indian saris and jodhpurs launched in 2007 by Hermes. More often than not, these other cultures (different from the Western culture) that work as source of inspiration are indigenous peoples. It seems obvious that the definition of a concept as TK, that comprises such a wide diversity of things raises a challenge. Although there is not yet an accepted definition of this concept at the international level, the World Intellectual Property Organization (WIPO) has proposed a pretty useful definition: Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. On the other hand, WIPO experts have made a distinction between TK in a general sense (when it embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK), and TK in a narrow sense (referred to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations)1.

Fashion and Traditional Knowledge

The decision of getting inspiration from a knowledge that belongs to indigenous peoples, could also be perceived (depending on a series of circumstances) as misappropriation of a knowledge (a corpus of ideas, practices, skills, techniques) that belongs to someone else. There is an implicit ethical dilemma underlying such a decision since, from the intellectual property point of view, the designer would be infringing property rights of an indigenous community. It is this dilemma what creates the opportunity for the IP attorney to act. Because the IP attorney, when is hired by the fashion industry, is the only capable of properly demarcating those cases that are an inspiration from those where there are risks of incurring in a misappropriation.

It is in the latter, where the IP attorney should propose its client (the designer, the fashion industry), one or more strategies suitable to protect the specific TK of indigenous peoples in a way the client can get the desired inspiration without the risks of unknowingly incurring in the infringement of the indigenous people´s rights on TK. Regarding the distinction between inspiration and misappropriation—a task that is responsibility of the IP attorney, jointly working with the client—, it would be interesting to quote Wend Wendland, WIPO’s Director: Brand owners sometimes copy, draw on, or are inspired by indigenous creativity when designing their brands or marketing goods and services. This is understandable, as indigenous art, designs, names, and symbols are often exquisitely attractive and distinctive. In addition, the use of indigenous words, imagery, and iconography (…) can lend a desirable air of “authenticity” and a powerful “local” feel to a product’s brand. However, there are risks for brand owners who do not involve the community in a respectful manner. (…) Second, an opportunity is missed for a win-win collaboration between the brand owner and the community, in which the community can benefit economically, socially, and culturally and the brand owner can enjoy the enthusiastic endorsement of the community and achieve a broader public relations benefit 2.

There are several examples of the win-win collaborations suggested by Wendland already occurring. One that is worth mentioning is the successful protection of traditional knowledge in Brazil. This is the story of the famous brand Osklen and the TK of the Ashaninka. A partnership was built between fashion brands and indigenous and local communities. This agreement shapes an alternative approach to the current fashion system, based on the respect of the local and indigenous community rights. In Brazil, the Asháninka live in the rainforests of the State of Acre. “The traditional dress, the chusma, a piece of fabric made from cotton and woven by Asháninka’s women on looms, with vertical lines for men and horizontal lines for women and can be ornamented with feathers and beads. It can take up to three months to be complete. Osklen, known for being the pioneer in the production of sustainable garments, has a collection named Asháninka composed by garments inspired by the Asháninka culture.

Oskar Metsavaht, founder and creative director of Osklen, has created, for instance, a black dress with a printed image of an Asháninka person, coats and skirts based on the chusma traditional dress, a white dress with printed feathers and dresses and skirts with Asháninka’s black geometric patterns. The use of this traditional knowledge, image and name was authorized by the indigenous community. Osklen signed a contract with the indigenous community in accordance with their commercial uses and traditions.” Wendland´s quote provide a conceptual basis for the IP attorney to devise a strategy to protect the IP rights of indigenous peoples. Of course, previously the IP attorney would have the task of carefully appraising each case to decide whether those rights do indeed exist. Even when such an argument is weak, and the existence of referred rights is not convincing, the IP attorney, the designer and the fashion industry could develop a scheme of collaboration with indigenous peoples more based on social responsibility principles than on legal issues. Then, even if what is defined as traditional knowledge, is rather public domain that should not (cannot) be protected, IP attorneys (appealing more to ethical than to legal considerations) should encourage the fashion sector, and the designers, to support and collaborate with indigenous peoples in order to guarantee their TK is protected for the future.

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María Elena Terrero, Partner, Bolet & Terrero. Attorney at Law from Universidad Católica Andrés Bello (1997), with courses at the Franklin Pierce Law Center (2003). At the firm Terrero has held a variety of positions. She is both Head of the International Department and Head of Special Projects Coordinator with a practice that covers patent brokerage services. Terrero is member of INTA’s Harmonization of Trademark Law and Practice Committee for 2018-2019. She coordinates pro bono projects in the firm. @: mterrero@B&