In 2019,
The story then took on such relevance that even the mayor of
Kardashian had to give up her original brand, change its name to SKIMS and abandon the already registered trademarks. This meant altering almost one million articles of clothing, which already had the former brand name on them, and immense negative publicity. The market entry costs increased, the brand's reputation was damaged and the return on investment was probably much lower than initially calculated for the first days. Truth be told, no one's interests had been protected: the Japanese people's cultural identity from being appropriated, and
What are traditional cultural expressions?
The topic of cultural appropriation is not new, and we have to raise awareness to avoid traditional and cultural identities hollowing out. Just think of one of the most debated cases of cultural appropriation in history:
Furthermore, in 2016, the Navajo - an indigenous nation in
The current IP legislation on traditional cultural expressions
IP rights exist to protect our work, our efforts, and simultaneously, the identity and values of the people from whom we draw inspiration. For every movie, photograph, haute couture dress, invention, perfume, book or brand, there are rights that can protect those who created it and the creation itself. Traditional cultural expressions (TCE) fall under the protection of IP, and WIPO defines them as including "music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives or many other artistic or cultural expressions."
The Navajo tribe has more than 80 trademarks registered with the
However, the problem is that the protection granted to these expressions is of a national or regional nature. It operates only in a limited number of countries, such as
Risk management and cultural awareness
We are far from international harmonization since most countries do not even have IP laws that protect cultural and traditional expressions. This lack of general legislation raises a problem: if a law does not exist, you cannot enforce the rights that it is meant to protect. Given that the legislation often lags behind the evolution of specific social phenomena, it becomes essential to look for alternative means to prevent these situations from happening again. The lack of action could compromise the entrepreneur's creative freedom and the cultural identity of a given population. An alternative means would be efficient risk management, which can be defined as "the practice of identifying potential risks in advance to develop effective strategies to manage it subsequently."
Indeed, given the lack of legislation, effective risk management should be based on strong cultural awareness. This could be an efficient tool in the countries that already have existing laws, to help increase their protection, as well as a stand-alone tool for the countries that do not. Hence, the Kardashian Kimono controversy was not a matter of IP law infringement, given the fact that
Holistic risk management has to comprise far more than financial risk evaluation, including awareness of the fine line that divides entrepreneurial freedom from cultural expression. At the same time, risk management and overall awareness should be proactive rather than reactive and operate from the beginning of a business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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