The relationship between trademark law and cultural heritage in China is a nuanced one, where the commercial protection of brand identities can sometimes clash with the need to safeguard cultural expressions and identities. This delicate balance involves managing the rights of businesses while ensuring the preservation of communities' collective heritage.
Cultural heritage, as defined by UNESCO, encompasses artefacts, monuments, buildings, museums, and more, representing symbolic, historic, artistic, or social significance. This includes both tangible heritage—such as immovable or underwater artefacts—and intangible cultural heritage (ICH), like traditions embedded in cultural and natural heritage. However, ICH related to cultural celebrations and festivals typically falls outside this scope.
Trademarking Cultural and Mythological Names
Names derived from cultural heritage, particularly those rooted in mythology or folklore, pose specific challenges in trademark law. While businesses can sometimes trademark these names, such actions raise concerns about cultural sensitivity and ownership. For example, brands like Hermès and Venus have successfully trademarked mythological names in specific industries, yet these trademarks don't extend to all contexts. Hermes, the luxury brand, holds a trademark in fashion, while Venus razors by Gillette focus on beauty products. Similarly, "Zeus" has been trademarked in commercial fields like electronics and fitness, but these names remain available for public use in other areas like art or literature.
Cultural Appropriation and Commercialization
Using culturally significant symbols, motifs, or names as trademarks without proper understanding or respect can lead to cultural appropriation. This often commercialises sacred or symbolic cultural elements, stripping them of their original meaning and reducing them to marketable commodities. The misuse of these symbols for profit, without any recognition or benefit to the originating communities, may harm the cultural identity of those groups. Cultural appropriation in trademarks can devalue the symbolic meaning of these elements and contribute to the exploitation of indigenous or local communities.
Misappropriation and Dilution of Cultural Symbols
The registration of trademarks that incorporate elements of cultural heritage can result in the misappropriation of these cultural symbols. For instance, if a company trademarks a culturally significant symbol, it might restrict the originating community's ability to use that symbol freely, thereby undermining their cultural autonomy. Furthermore, extensive commercial use of such symbols can dilute their original meaning, potentially trivialising religious or historically significant symbols when used in an inappropriate commercial setting.
Legal Protections and Frameworks
Many legal systems offer limited protection for cultural heritage within the framework of trademark law. While mechanisms exist to oppose trademarks deemed offensive or misleading, they often fall short of addressing the complexities surrounding cultural appropriation and misappropriation.
International frameworks, such as efforts by the World Intellectual Property Organization (WIPO) to protect traditional knowledge and cultural expressions, seek to bridge this gap. However, translating these international principles into national legal protections is often a challenging process, leaving many cultural communities without adequate legal recourse.
Balancing Commercial and Cultural Interests
To address these issues, legal systems must find ways to balance the protection of commercial trademarks with the preservation of cultural heritage. This may involve stricter scrutiny of trademark applications involving cultural elements and greater input from the relevant cultural communities. Collaborative efforts between businesses and cultural representatives could foster more respectful and mutually beneficial use of cultural symbols in trademarks.
Legal Challenges and Limitations in Trademarking Cultural Names
Trademarks on names deeply rooted in cultural heritage, such as those from mythology or folklore, face significant challenges. Such names are often considered part of the public domain and are freely available for public use. As a result, securing exclusive trademark rights for these names is difficult unless the name is used in a distinctive commercial context.
Courts also assess whether the trademark application could cause confusion among consumers. For example, using a name like "Zeus" for an electronics brand, distinct from its cultural or historical significance, may not lead to confusion, enabling trademark approval. However, distinctiveness remains a key criterion—culturally significant names used in a generic or common manner might not be eligible for trademark protection.
Trademark holders must also avoid overreaching, as attempts to monopolise culturally significant names across all contexts can trigger legal challenges and public backlash. Even when trademarked, these names generally only apply within specific commercial categories, allowing their use in non-commercial or unrelated industries.
Conclusion
The intersection of trademark law and cultural heritage highlights the complexities of balancing commercial interests with the preservation of cultural identity. While it is possible to trademark names rooted in cultural or mythological history, these trademarks are usually limited to specific commercial contexts and do not prevent their broader cultural use. Legal systems must continue to evolve, recognising the importance of cultural sensitivity and ensuring that businesses respect the symbolic value of cultural heritage. Collaboration between cultural communities and businesses, alongside stricter legal safeguards, is essential to maintaining the integrity of cultural heritage in the commercial realm.
Woodburn Accountants & Advisors is one of China’s most trusted business setup advisory firms.
Woodburn Accountants & Advisors is specialized in inbound investment to China and Hong Kong. We focus on eliminating the complexities of corporate services and compliance administration. We help clients with services ranging from trademark registration and company incorporation to the full outsourcing solution for accounting, tax, and human resource services. Our advisory services can be tailor-made based on the companies’ objectives, goals and needs which vary depending on the stage they are at on their journey.
Talk to an expert
Schedule a 30-mins complimentary, no-obligation call to see how Woodburn can help you. Book a call with our Head of Business Advisory - Kristina Koehler-Coluccia.
Topics we can advise on include:
Company Registration
Cloud Accounting & Financial Reporting
Cloud Payroll Services
Tax & Audit Services
Recruitment
Employer-of-Record
Visa Application
Trademark Registration
Switch to Woodburn
Partner with Woodburn (cross referral)
Our calls are automatically scheduled via Zoom - or via Teams, WeChat or WhatsApp upon direct request.
Our advisory calls are available from Monday-Friday from 8am to 5pm CEST and Wednesday until 9pm CEST.
Comments