This article is authored by Aminesh Nayan Gogoi, Editor-in-Chief, Fashion Law IP Blog.

The article traces how international IP law, rooted in Western ideals of individual authorship, often leaves Indigenous creativity in the public domain, inviting misuse. In response, countries and institutions are turning to sui generis protections, documentation systems like India’s Traditional Knowledge Digital Library, and benefit-sharing frameworks under the Nagoya Protocol. Through global case studies, from the Navajo Nation to the San people, it examines how law, ethics, and activism are reshaping fashion’s relationship with Indigenous rights.

Introduction

Traditional Cultural Expressions (TCEs) such as textiles, attire, ornamentation, symbols and designs are deeply woven into Indigenous identity. Fashion designers often draw on these motifs for inspiration, but using Indigenous designs or words without permission can inflict real harm. As WIPO notes, employing elements of Indigenous peoples’ TCEs “without consent and in inappropriate ways…can cause offense and harm to Indigenous Peoples”. Indeed, critics observe that Western IP laws (copyright, patent, trademark) are ill-suited to protect communal, inter-generational culture. Under current regimes, much traditional art is treated as “public domain,” enabling widespread misappropriation by industries like fashion/ textile or pharmaceuticals. Indigenous communities have therefore advocated for stronger protection of traditional creativity and designs, citing cases where their heritage was copied onto goods or patented without recognition.

International IP Law and Traditional Designs

Conventional IP rights (e.g. copyright, industrial designs) demand “originality,” fixation and individual authorship. Many indigenous creations are collective and transmitted orally, so they often fall outside statutory protection. Patent law, designed for technological inventions, typically ignores traditional knowledge as prior art. Trademark law only protects distinctive marks used in commerce, while moral rights protect only named authors, not communities. As a result, when fashion brands use Indigenous art or names, legal recourse is limited. For example, the Navajo Nation successfully relied on tribal trademarks (and the Indian Arts and Crafts Act) to stop Urban Outfitters from using the “Navajo” name on clothing, but the underlying creative designs often had no copyright protection.

Scholars argue that TRIPS and other international agreements “reflect Western values” and fail to accommodate Indigenous cultural contexts. Article 27.3(b) of TRIPS permits sui generis protection for genetic resources or plant varieties, but says nothing about folklore or designs. As Kennedy Wilson notes, “The IP systems provide limited solutions for protections of TCEs,” and many see a need for sui generis regimes and wider recognition of communal rights. WIPO’s own analysts conclude that current IP law is “woefully inadequate” for protecting Indigenous knowledge and expressions. In practice, some countries have experimented with specialized laws or programs (e.g. registers of Indigenous designs, collective trademarks, and heritage databases) to plug the gap.

One practical strategy has been creating databases of traditional knowledge to prevent “biopiracy” patents. India’s Traditional Knowledge Digital Library (TKDL), launched in 2001, compiles Ayurveda, Unani, Siddha and other indigenous medicinal knowledge. TKDL translates this traditional prior art into formats patent examiners can search. It now contains tens of millions of pages of traditional formulations, so that patents cannot be wrongly granted on known remedies. As WIPO reports, the TKDL “provides information on TK…in languages and a format understandable by patent examiners” and “aims to prevent the granting of erroneous patents” on traditional inventions. This kind of defensive protection has successfully thwarted foreign patents on turmeric, neem and other known healing practices, underscoring the role of documentation in curbing biopiracy.

Global Case Studies (TCE Protection and Misuse)

Australia (Bulun Bulun case): In Bulun Bulun v. R&T Textiles (1998), an Aboriginal artist sued when a company screen-printed his sacred bark painting on T-shirts without permission. The Federal Court found copyright infringement and recognized that copying the work had caused cultural harm. Mr. Johnny Bulun Bulun testified that the reproduction caused him “great embarrassment and shame,” calling it “theft of an important birthright”. The court awarded damages not only for copyright violation but also equitable compensation for violating Indigenous customs. This was a landmark in acknowledging that Western IP can sometimes protect Indigenous art if framed as an individual’s copyrighted work.

United States- Navajo Nation: In 2012 the Navajo Nation sued Urban Outfitters for selling underwear and flasks marked “Navajo,” using Navajo patterns without permission. The case settled in 2016; Urban Outfitters acknowledged the Navajo Nation’s valid trademarks and agreed to license their use. This outcome, establishing licensing for authentic Native products underscored tribal sovereignty over names and symbols. However, as commentators note, U.S. copyright law still lacks tools for communal designs; many Navajo patterns remained unprotected by copyright.

United States- Ravenstail Weaving (Alaska): In 2020 the Sealaska Heritage Institute sued Neiman Marcus over a $2,555 knit coat called “Ravenstail.” The coat closely copied a traditional Tlingit/Haida weaving pattern created by artist Clarissa Rizal. Sealaska’s complaint (filed in Juneau) alleged both copyright infringement and violation of the Indian Arts and Crafts Act. Experts called it “one of the most blatant examples of cultural appropriation and copyright infringement”. Notably, this was reported to be the first U.S. lawsuit asserting a copyright in an Indigenous design. The case is ongoing, but it highlights how Indigenous groups are now using copyright (and provenance laws) to challenge the unauthorized use of ancestral designs.

New Zealand (Māori Cultural Appropriation): Māori communities have frequently protested unauthorized use of their culture in fashion. In 2025 the shoe brand Hoka (French-American) was criticized for using the Māori name Hoka (“to fly”) without acknowledging its origin. Similarly, public outcry forced Air New Zealand to abandon plans to trademark the Māori greeting “Kia Ora”. These cases did not go to court, but they illustrate that use of Indigenous words and symbols in branding can prompt reputational risk and demands for ethical practice.

South Africa (Hoodia biopiracy): In the late 1990s the South African Council for Scientific & Industrial Research (CSIR) patented the appetite-suppressing ingredient of the hoodia plant, based on San traditional knowledge, without consulting the San people. After media exposure, a 2003 benefit-sharing agreement granted the San community 6% of royalties from commercial products. This case often called a classic biopiracy saga, shows the limits of patent law: the CSIR had a patent in its name, but later acknowledged a fiduciary duty to share benefits with the knowledge holders. It illustrates how access-and-benefit-sharing (ABS) regimes (mandated by the UN Convention on Biological Diversity) operate in practice, turning unauthorized use into negotiated sharing of profits.

Canada (Inuit Igloo trademark): Since 1958 Canadian law has protected Indigenous art through certification marks. For example, Inuit artisans use a registered “IGLOO” authenticity trademark on carvings and prints. In 2017 the Inuit Art Foundation took ownership of the Igloo mark, giving Inuit communities legal standing to sue counterfeiters. This model, using trademarks to protect the cultural origin and reputation of Indigenous art has been cited as a best practice. (By contrast, Canada has no specific copyright carve-out for folklore, and many Indigenous creations remain unprotected unless registered.)

Biopiracy and Benefit-Sharing

Biopiracy refers to the unauthorized use of biological resources or associated knowledge. Fashion often overlaps here through use of natural dyes, fibers, or motifs tied to medicinal plants. International law addresses biopiracy mainly via the Convention on Biological Diversity (CBD) and its Nagoya Protocol, these require prior informed consent and fair benefit-sharing when companies exploit genetic resources and Indigenous knowledge. Patent offices are encouraged to demand disclosure of origin in biotech patents. For example, the WIPO Intergovernmental Committee (IGC) is negotiating provisions on patents for genetic resources, though some states resist mandatory disclosure.

Notable developments

Many countries now require permits and agreements for research on native biodiversity. Under India’s Biodiversity Act (2002) and similar laws, patent applicants must show benefit-sharing agreements if using traditional knowledge. The goal is to transform misappropriation into partnership.

As noted, India’s TKDL and Brazil’s BIOSSEEK databases help patent examiners refuse frivolous claims. These “defensive protection” measures have led to withdrawals of contested patents on turmeric, neem and other known folk remedies, thereby limiting biopiracy via the patent system.

The San agreement in 2003 remains a landmark: it illustrates that while patents were initially held by outsiders, eventual negotiations can yield royalties (San get roughly 6% of sales). Critics point out the San share is a “minuscule sliver” of overall profits, but it set a precedent for ABS.

In 2022 WIPO members agreed to move forward on an international instrument for genetic resources and associated traditional knowledge, aiming for a diplomatic conference by 2024. This indicates growing global will to require patent disclosures and benefit-sharing for biocultural innovations.

Cultural Appropriation: Legal Limits and Ethics

When fashion brands draw on Indigenous culture without recognition, this is termed cultural appropriation. Legally, limits are few. Apart from trademarks and the Indian Arts and Crafts Act in the U.S. (which outlaws fraudulent “Native-made” labels), mainstream IP law offers little recourse. Courts have sometimes awarded damages under general copyright or equity theory (e.g. recognizing a breach of trust or moral rights), but there is no standardized remedy for the collective cultural offense.

Because of these gaps, much of the protection of heritage in fashion relies on ethical obligations and voluntary guidelines:

1. Free, Prior and Informed Consent (FPIC): The UN Declaration on the Rights of Indigenous Peoples (Article 31) recognizes Indigenous peoples’ rights to their cultural heritage and to consent to its use. Fashion houses are encouraged (though not legally required) to obtain FPIC before using tribal designs or symbols.
2. Industry Codes and Agreements: Some brands now adopt internal policies for cultural sourcing. For instance, Disney agreed to consult Sámi leaders on the representation of Sámi culture after criticism of Frozen. While not legally binding, such accords reflect best practices. WIPO’s draft guidelines on fashion and TCE explicitly advise respectful collaboration: they urge designers to engage Indigenous artists in good faith and share benefits.
3. Public Backlash and Market Forces: Consumer awareness exerts pressure too. The Hoka and Kia Ora incidents in New Zealand, or the Pendleton blankets debate in the U.S., show that companies can face boycotts or must apologize for insensitivity. These societal norms supplement law: “brands can use Māori words, as long as they follow best practice,” says Māori IP expert Lynell Tuffery Huria.

In sum, while the legal limits on appropriation remain narrow, a combination of tribal trademarks, reputation laws and social responsibility is increasingly invoked. Many legal scholars advocate strengthening IP frameworks (e.g. communal moral rights or expanded copyright) or creating new laws to explicitly protect Indigenous design. At the very least, academic discussion urges an ethics-based approach, respecting Indigenous ownership of culture as a matter of justice and sustainability.

WIPO’s Role and Latest Developments

The World Intellectual Property Organization has been a central forum for these issues. WIPO’s Indigenous and Traditional Knowledge Division leads negotiations and outreach on TCE and genetic resource protection. Key activities include:

Since 2000, WIPO Member States (with Indigenous observers) have negotiated an international instrument on TK and cultural expressions. In 2022 the WIPO General Assembly set a deadline: a diplomatic conference on genetic resources and traditional knowledge is to convene by 2024. Indigenous delegates (through a caucus) press for strong measures like patent disclosure requirements; the status of TCEs in the final treaty remains to be seen.

WIPO has actively brought together fashion industry and Indigenous leaders. In November 2023 it held a “High-Level Dialogue on Indigenous Peoples, Traditional Cultural Expressions and Fashion” in Geneva, aiming to foster best practices. WIPO’s goal is explicit: to shape “fair and equitable interaction” between communities and companies.

WIPO published a Draft “Six Steps” Guideline for fashion designers using Indigenous motifs. This consultation draft crafted with Indigenous input- advises seeking permission, negotiating rights, and ensuring benefits flow back. It emphasizes ethical engagement and respect. WIPO also provides training to IP offices (e.g. on examining patents involving TK) and supports Indigenous groups in leveraging IP (e.g. through awareness on GI, certification marks, etc.).

WIPO’s magazine and reports regularly highlight practical examples. For instance, a 2024 WIPO Magazine profile featured Tlingit artist James Johnson, who collaborates with brands like Vans and Lib-Tech to apply traditional formline art to shoes and snowboards. Johnson’s success story “Tlingit Art on Boards” shows how Indigenous creators can engage the market on their terms. (Image: WIPO magazine’s cover photo of Johnson painting a snowboard). WIPO also funds research like the Minding Culture casebook on IP and folklore, and shares data on national TK laws.

Beyond WIPO, global instruments support Indigenous culture. The UNESCO 2003 Convention for the Safeguarding of Intangible Cultural Heritage raises awareness of traditional arts, and UNDRIP (2007) enshrines rights to cultural IP. While these lack enforcement mechanisms, they inform national policy and corporate codes. Some regional trade agreements (e.g. Pacific Island partnerships) include provisions on TK.

Recent Developments

The pace of change is accelerating. In 2023–25 alone, new cases and initiatives have emerged: the continued Wagner of Ravenstail in U.S. courts; WIPO’s gender and TK efforts; and growing use of technology (like blockchain) to certify origin. Lawmakers and scholars are debating reforms for example, a 2024 U.S. bill proposed extending copyright terms to favor Indigenous works indefinitely.

Conclusion

Protecting Indigenous cultural heritage in fashion lies at the intersection of intellectual property law, human rights, and ethics. While existing IP regimes are limited, a combination of legal strategies (trademarks, equitable doctrines, TK registries) and ethical commitments (prior informed consent, fair benefit-sharing) can advance protection. WIPO’s leadership through negotiations, guidelines and dialogues is crucial for forging international norms. As global case studies attest, respectful collaboration (as with James Johnson and Lib-Tech) is both possible and desirable. Continued research and policy work are needed so that international law evolves to shield traditional knowledge and designs from misappropriation, ensuring Indigenous communities retain control over their cultural treasures.

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References:

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