Australian trade mark legislation does not currently recognise indigenous rights. As stated by the Indigenous Expert Reference Group - The current legal framework does not and is not designed to provide First Nations people with the ability to obtain holistic recognition and protection of their indigenous cultural and intellectual property rights.
Between February and May 2021, IP Australia sought feedback as part of its Indigenous Knowledge Project looking at ways the Intellectual Property system can better support Aboriginal and Torres Strait Islander peoples to benefit from and protect their indigenous knowledge.
In September 2022 the Indigenous Knowledge Consultation Report was issued. In the report, IP Australia advised that it is developing measures to reflect the importance of consent and consultation when indigenous knowledge is used in trade mark and design applications.
It is also considering new processes to support recognition and respect for decision-making about indigenous knowledge by traditional owners and custodians.
In particular, IP Australia is looking to:
- develop a new check or ‘ground for rejection’ allowing IP Australia to ask for information about proposed use of Indigenous Knowledge in a trade mark
- identify trade mark application forms so that applicants can state if they are using indigenous knowledge
- co-design tools to help traditional owners locate potential use of their indigenous knowledge.
We are watching this space for future developments and will provide further updates from IP Australia once these guidelines issue.