This article is written by Kinjal Keya, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Dhruv Shah (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Introduction

In the modern fashion industry, there has been an increased reliance on traditional knowledge and traditional cultural expressions in order to find inspiration for new design ideas. Premium entities operating in the fashion industry have used ideas from traditional communities to create new fashion trends, various countries have recognized their vast potential in terms of traditional knowledge to contribute to modern fashion and have started recognizing and developing these practices. For instance, South Africa has organized a fashion week event specifically dedicated to indigenous designs. This has great potential for the growth of traditional knowledge-driven modern fashion ideas. However, they pose a challenge regarding the need to balance the rights of traditional knowledge holders and the companies manufacturing and marketing the fashion products made from the application of the traditional knowledge.  

The emerging role of traditional knowledge in fashion industry

Traditional knowledge includes the innovations and practices that play a multifaceted role in all aspects of the lives and livelihoods of the communities residing in a particular area or spread over a region for generations. Traditional knowledge refers to the technical know-how, skill, technique, and methodology of production or value addition of goods and services prevalent for a substantial time period and is passed on from one generation to another. It has a direct proximate effect upon fields such as agriculture and food, human and animal health, clothing, shelter, architecture, art, culture, handicrafts, natural resource management, etc. Traditional knowledge is an indispensable part of the biocultural heritage of indigenous peoples and local communities. The application of traditional knowledge (TK) is not merely limited to rural, tribal, and indigenous spheres, in the modern-day and age, there is a growing market in the domain of the fashion designing industry encompassing clothes, footwear, apparels, etc. 

Traditional knowledge plays a vital role in the modern fashion industry, its contributions are highlighted by the fact that many flagship brands around the world are adopting sustainable traditional designs and rebranding and marketing their contemporary products. Prominent instances of such practices are stated below.

Nike Air Force 1 Puerto Rico and the Guna culture of Panama 

The 2019 sneakers launched by Nike referred to as “Air Force 1 Puerto Rico” were primarily based on the Mola design pattern which has its roots in the Guna culture prevalent in South American Nations such as Columbia and Panama. Although due to misinformation and lack of clarity Nike had mentioned its origins in Puerto Rico but eventually after the issue was brought forward by the Guna community then Nike had to act in time by canceling the launch at that time. 

Isabel Marant and the Mexican community of Santa María Tlahuitoltepec 

In 2015, Isabel Marant’s a prominent designer presented a blouse in her spring/summer “Étoile” collection. The designer directly recognized that she had taken inspiration from the textile designs of the Mixe Community of Santa María Tlahuitoltepec residing in Mexico. However, such a gesture was not supported by any formal recognition and the Mixe or Ayuuk Community was denied the acknowledgment in the capacity of the original source of inspiration for the design and they were also blatantly ignored during the marketing and endorsement of the collection, furthermore, there was no financial share in profit or compensation provided to the community. 

Navajo Nation vs. Urban Outfitters case 

Another landmark development in the domain of usage of traditional knowledge in the fashion industry emerged in the case involving the company Urban Outfitters, which launched an entire range of products that were inspired by the traditional designs of the Navajo tribe. The collection consisted of multifarious products ranging from perfumes to clothes and undergarments and all of them had the printed design resembling the traditional design of the Navajo tribe. The Navajo community was agitated by this and subsequently, their leaders filed a lawsuit against the Urban Outfitters company and claimed unauthorized usage of their designs for facilitating commercial benefit.  

These instances clearly denote the contemporary fashion industry’s reliance on traditional knowledge and indigenous designs for manufacturing new products. It also highlights the need to protect the interests of the traditional communities who have been protecting and developing the traditional knowledge for generations. 

Consent, acknowledgment and equitable financial distribution

The method to resolve the conflict of interests among the traditional communities and the contemporary fashion industry can be threefold (1) informed and explicit consent, (2) Formal Recognition and acknowledgment of the source, and (3) fair and equitable financial distribution of commercial gains made from the design or product. 

As per the  United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Free, Prior and Informed Consent (FPIC) is a duly recognized right of the Indigenous peoples with reference to any developmental work or interference in resources owned and managed by them. The individual stakeholders in the fashion industry that get inspired by traditional cultural expressions (TCEs) firstly need to approach the concerned traditional community and seek for the free, prior and informed consent of its custodians which may include those responsible members of the community that have safeguarded and contributed in the growth of such practice or expression. There must be clear transparency and the community members must be aware of the usage of their motifs, art, and expressions. This principle of prior informed consent shall be made applicable to all such initiatives which involve getting access to TK or TCEs originally belonging to the Indigenous communities.

Furthermore, another essential element is acknowledging the source of product, the textile and fashion designer or the industry outlet that manufactures and markets the products based on traditional knowledge shall compulsorily give credit and duly recognize the origin of such inspiration. Acknowledgment of the source can be done in a two-pronged manner firstly; it can involve the practice of storytelling that refers to a brief mention of the origin in form of a short story or product labeling which will also denote the source of the product. This will help in bringing appreciation for the practice and the traditional community to which it belongs thereby further encouraging the community to contribute more thorough development of skills.

This increased demand in fashion industry goods inspired by traditional knowledge implies new opportunities for the local communities as the financial benefit through sharing of resources and knowledge can contribute to their socio-economic development. However, instances of local communities benefiting from commercial usage of their resources and knowledge have been rare as the bulk of the profits have gone to companies that use them. The cases of biopiracy and misappropriation of traditional knowledge are becoming increasingly common. The holders of traditional knowledge and traditional cultural expressions have to be duly compensated in a justifiable manner. A viable way of doing this could be through fixed profit sharing directly between the industry and the concerned community along with improved economic dividends it will also eliminate the complex chain of intermediaries there. 

Role of geographical indications and its advantages over patents

Patents have been portrayed as an effective tool for protecting rights over traditional knowledge, but they do not cater to the specific requirements of the local community which holds Traditional Knowledge (TK). Patents are largely suited for protecting modern technological inventions because the main precondition for protection being granted under patents are the elements of novelty and inventiveness. On the contrary, traditional knowledge such as the knowledge relating to medicinal plants and crops is dynamic in nature, it evolves constantly through time as it is passed on from generation to generation and is held in a collective manner. Therefore, the local communities which possess the TK may not be able to clearly define the conventional inventive parameter such as the exact time of acquiring such knowledge. Furthermore, the majority of the traditional knowledge is already present in the public domain and therefore is not theoretically a new invention. Another aspect that makes patents unsuited for providing appropriate protection to TK is the fact that they focus narrowly on commercial goals, without taking into account the traditional practices or values.

The most suited tools for protecting the rights of traditional knowledge holders are Geographical indications because they grant the protection regarding the product to the whole area where the traditional community possessing such knowledge resides. It can further help in branding and marketing of the product as a distinct name depicting its geographical origin will be associated with it emphasizing originality. It will also help in raising awareness about the product and there will be no dispute or point of contention as to irregularities in acknowledgment of source as GI clearly defines and recognizes the source.  

Conclusion

There is vast untapped potential in the domain of traditional knowledge and traditional cultural expression which is capable of being utilized in creating contemporary fashion, such usage will bring benefits for both the fashion industry and also the indigenous communities. It has the potential to revamp the socio-economic conditions and improve the living standards of the traditional communities of middle-income and lower-middle-income nations that are facing the threat of cultural and social extinction. The utilization of such knowledge must be subject to a system of checks and balances to ensure that there is equitable distribution of financial benefit gained through the usage of traditional knowledge. A balanced usage will ensure sustainable benefit for the industry as well as the community.   

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