The Guna people to Nike: Just don't Do It

@Isaac Larrier

A limited edition by sportswear Nike is a trending topic. The shoes were to be a tribute to Puerto Rico but the Guna people, the second largest indigenous community in Panama, objected to the design. The said design was a ‘mola’, which is a protected traditional design by the community. The design in question are the traditional 'mola' patterns which feature colourful, swirling designs and geometric or figurative drawings. This art is ‘passed on stitch by stitch from mothers to daughters and bears witness to the Guna vision of the cosmos and their harmonious relationship with nature’.

The April 2012 issue of the WIPO Magazine, contains an article titled "Panama: Three Marks for Development". The article, which is a series, examined how the World Intellectual Property Organization (WIPO) may help associations of small local farmers and producers in developing countries to add value to their outputs through trade marks. One of the case study was ‘the Guna people’s finely-stitched cloth ‘molas’. The article explained that during the 1980s, there was a high demand for molas. As there was ‘no marketing strategy or legal framework to protect this age-old art, imitations of Guna designs flooded the market’. Therefore, the Ministry of Commerce and Industry with WIPO’s assistance passed Law No. 20 on the Special Intellectual Property Regime with Respect to the Collective Rights of Indigenous Peoples to the Protection and Defense of their Cultural Identity and Traditional Knowledge. This is a Law that is used as ‘good practice’ by many jurisdictions. A law of its kind that protects Traditional Knowledge. However, as we all know in the area of IP, these rights are territorial, and thus, the law protected the mola only in Panama. Yet, WIPO assisted the group and helped them to develop the mark ‘GaluDugbis’ trying to guarantee authenticity, an assurance to consumers. This is seen as a strategic tool that adds market value to products. The idea is for consumers to recognize the mark even internationally.

Is there an infringement? What about territoriality as we know that IP is only national? Or is this more to do with the rights of the people and their cultural heritage?
A leader of the Guna people notes that the matter rather than being the commercialization of the design, it was the fact that it was done ‘without consulting [them] first.’ This bring into attention the ‘right to be consulted’ embedded in the ILO C169 which refers to consultation, while the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007 notes ‘free, prior, informed consent’. In an article published recently in the IIC - International Review of Intellectual Property and Competition Law, by the Max Planck Institute, I covered the topic of ‘Geographical Indications of Traditional Handicrafts: A Cultural Element in a Predominantly Economic Activity’. A traditional product while the community may decide to commercialize it, still there are other issues that need to be (carefully) considered.

Finally, Nike apologized for the ‘inaccurate representation’ of the shoe and is withdrawing it from the market.