We recently reported on IP Australia’s work plan, which has an objective to support the cultural integrity and economic potential of Indigenous Knowledge held by Aboriginal and Torres Strait Islander people.  See The IK Plan

IP Australia has recently released a consultation paper identifying four topics for consultation.

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Topic 1 - Establishing an Indigenous Advisory Panel – providing a formalised Indigenous voice to IP Australia.

IP Australia has sought examples of any other successful panels or similar groups and queried how a Panel should engage and what role it should have in problems / conflict.

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Topic 2 - Measures for trade mark or designs using Indigenous Knowledge – changes to processes to ensure IK owners benefit from, or have consented to, the use of their IK as the basis for rights.

IP Australia may currently reject an application if it finds that it uses:

• IK which is secret or sacred;
• the name of a group or a nation where there is no connection to that group or nation; or
• an Aboriginal or Torres Strait Islander word which should be available for other business to use.

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The current process has limitations and IP Australia poses a series of questions to identify an improved process, which include:

• Requirements to provide a statutory declaration, a letter of consent or other evidence (such as evidence of use or the source) in order to use IK in a trade mark application.
• Preferences on additional criteria options of consent, offensiveness or deceptiveness.
• The role of IP Australia and an Indigenous Advisory Panel in decisions.

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Topic 3 - New requirements to declare the source of Indigenous Knowledge used in new innovations – make it easier to determine if IK has been used in a patent or plant breeder’s right, and encourage conversations about access and benefit sharing.

IP Australia identifies questions about whether patent applicants should be required to declare the source of:

1. genetic resources and/or
2. traditional knowledge

included in their applications or on which an application is based.

Further questions relate to how such requirements would be implemented, enforced and, if not complied with, penalised.

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Topic 4 - Labelling to promote authentic Indigenous Products – exploring interest in labelling schemes that distinguish authentic Aboriginal or Torres Strait Islander goods.

IP seeks feedback specifically from Aboriginal and Torres Strait Islander people and businesses on the following:

• Current labelling or certification schemes, or any other way to promote authenticity of products.
• Current products or sectors.
• A fee to use a Certification Trade Mark or label of authenticity.
• The government role in the setting up of labelling schemes for authentic products.

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Consultations close on 24 May 2021.

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