Intellectual property rights are commonly assumed to be irreconcilable with indigenous peoples’ worldviews and incapable of protecting their biocultural heritage. There are good reasons to believe this. Despite this, intellectual property rights are used by small producers around the world. This is because they can help to generate much needed income without necessarily clashing with deeply-felt cultural and spiritual values, or with long-established customary legal norms. The Potato Park communities, organised as an association, have adopted a pragmatic, albeit principled, approach to the use of those intellectual property rights which are best able to accommodate collective interests.

Specifically, this study...

Debates over how best to use intellectual property rights (IPR) for the protection and promotion of indigenous people’s traditional knowledge (TK) are often complex and contentious. This debate has continued to evolve in both academic and policy arenas over the last two decades. Problems with engaging intellectual property instruments to protect traditional knowledge include the preference towards private and individual ownership of property, in contrast to TK’s collective and intergenerational nature; a prioritisation of economic over social or cultural values; and a narrow focus on the intellectual or intangible aspects of work, with little or no attention paid to how...

The Potato Park (Parque de la Papa) in Cusco, Peru, is an indigenous biocultural heritage area,⁶ created in 2001 to protect and preserve the collective biocultural heritage and livelihoods of six Quechua communities in the Pisaq district. It seeks to integrate landscape and ecosystems with culture and agro-biodiversity as a means of building sustainable livelihoods. Multiple players have a role in the Park’s development: the land itself, ‘Pachamama;’7 cultivated, semi-cultivated species and wild relatives of certain crops; as well as Andean biodiversity and the cultural assets and spiritual expressions of local farmers (campesinos or comuneros). The Potato Park celebrates and...

It has been argued that intellectual property (IP) instruments, in general terms, are unsuitable for safeguarding the complex and holistic collective interests of indigenous peoples (Posey and Dutfield, 1995; Davis, 1997; Mugabe, 1999). Nevertheless, certain so-called ‘soft’ or ‘indigenous-friendly’ IP instruments such as geographical indications, collective trademarks or even unfair competition laws can, under certain circumstances, serve to protect innovations and products developed by indigenous peoples and traditional societies, such as food crops and medicines (Dutfield, 2011).

A trademark is a sign that distinguishes a good or service offered by a company and enables it to differentiate its products and...

To apply for a collective trademark in Peru, the association, cooperative, group of producers or the collective in general are required to develop written ‘internal regulations for the use of the collective trademark’, to be approved by the National Institute for the Defense of Competition and Intellectual Property (INDECOPI). This internal regulation determines the exact conditions under which members of the collective can make use of the collective trademark. It defines:

what products or services may be covered

how the collective trademark must be presented

the rights assigned to the members of the collective

under what circumstances members may be...

The Potato Park followed the formal steps required for registering a collective trademark with the competent national authority (see Box 2 for INDECOPI requirements). The process involved the following steps:

1. Asociación ANDES and the Communities of the Potato Park, in 2002, selected the best design to identify the Potato Park Collective Mark based on a locally organised competition (see Figure 2).

2. Asociación ANDES and the Communities of the Potato Park developed an internal regulation for the use of the collective mark in 2009 (see Box 3 below for a summary of the regulation, and Annex 1 for the complete version,...

Despite the problems encountered with the formal application process, since 2005 the Potato Park has been using, and will continue to use, its collective trademark informally for personal care, food and natural health products. A small participatory survey was undertaken in December 2010 to evaluate the social, cultural and economic impacts of the Potato Park’s informal collective trademark. Ecological impacts were not assessed, as this is being undertaken through a biocultural climate change assessment.²¹ Representatives of the Potato Park Economic Associations (collectives)²² were selected and interviewed individually. 20 community members (12 men and 8 women) participated in this survey. The...

Over the past few years, close attention has been given in Peru to intellectual property rights like collective trademarks, geographical indications (GIs), utility models and trade secrets.²⁶ It is argued that these ‘soft’ IP tools offer some degree of flexibility for indigenous and local communities and in particular ensure that the collective nature of community creative processes is respected. Some of the most notable examples are the collective trademark ‘Chirimoya Cumbe’ and geographical indications for Pisco and Maíz Gigante Blanco del Cusco, as well as a proposed collective trademark, ‘Café del Perú’. In 2010 alone, 20 applications for collective trademarks...

‘Biocultural heritage indications’ are proposed as a novel or sui generis²⁹ legal regime that protects and promotes biocultural expressions and is sensitive to the local customary laws and practices that sustain biocultural heritage. Such indications would focus on protecting and promoting not only final products but also distinct socio-cultural production processes, including networks of cultural, socioeconomic and ecological relationships and values, and people-land interconnections. The ‘biocultural grouping’ or collective rights-holder can be defined by a ‘community of practice’ embedded in shared institutions, relationships and rituals which are inextricably linked to their cultural identity, and in their experiences with their natural...

As the Potato Park’s experience shows, ‘soft’ IPRs such as collective trademarks can enable indigenous communities to increase sales and revenues of biocultural heritage-based products, while also strengthening social cohesion, economic integration and environmental stewardship. Collective trademarks allow communities to develop the internal regulations for the use of the mark themselves, drawing on their own customary laws and practices. However, this case also highlights the difficulties that indigenous peoples face in registering their products through existing application procedures, and the need for procedures to take into account other legal requirements for indigenous peoples which could prevent them from applying in...