Cultural Appropriation in IP

By: Adonne Washington 
Cultural appropriation is defined as “the unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society.” Cultural appropriation exists all around us, sometimes it is in small ways and other times it is the blatant theft of Intellectual Property from small or remote communities who have made this piece of IP a part of their life and culture. While intellectual property is an area of law to specifically protect individual’s expression, creation, and items or processes that they have invented; people are constantly being ripped off by others. Often times, it happens in the fashion industry where large fashion houses like Christian Dior and Louis Vuitton, can take items from these remote communities and turn it into their next big fashion statement. Adopting the designs and embroidery as their own runway looks and not giving the credit to those who don’t see it as a fashion statement, but as a piece of their culture.
Cult Gaia, started by Jasmin Larian in 2012, is defined as a lifestyle brand with pieces that make you look twice. Inspired by nature and women, items with utility as well as art qualities which is what lead them to design and sell the “Ark” bag in 2016. While the bag was originally given to family and friends, in 2017 fashion influencers and even celebrities began to carry the bag creating an overwhelming want for the bag. While this “Ark” bag seemed to be new and fashionable, it was actually a design taken from Japanese fishing culture in the late 1930’s. However, Larian was unaware of this until she applied for trademark and patent protection of the “Ark” bag. The USPTO swiftly denied her application and informed her that her bag was “functional and directly derived from the widely recognized Japanese fishing bag…therefore, consumers would not be able to link Cult Gaia’s bag to one particular source.” Larian’s lawyer responded to the office action but was again informed that the bag was a clear recreation of an already created item, meaning it was purely utilitarian and could not be protected because of the cultural implications the bag carried. 
While not all USPTO examiners may not be able to catch on to a trend that is inherently related to a specific culture, when they do it is important that they call out the individual who is trying to receive patent and or trademark protection on their “intellectual property.” Those who fall victim to intellectual property theft or the theft of their cultural practices or ideals have no recourse to protect themselves or fight back, especially when their opponent could be a multi-million-dollar fashion brand. Thankfully, in August 2018 the WIPO drafted documents that would protect the moral rights stating, “traditional cultures and folklore constitute frameworks of innovation and creativity that benefit Indigenous [Peoples], [local communities] [and nations] / beneficiaries, as well as all humanity.” With this draft the WIPO can begin to protect more individuals, however this will not be an end to the cultural appropriation.