Thus, the government can envisage putting in place a legal framework akin to that of the BD Act, specifically on the lines of Section 21 (determination of equitable benefit sharing by National Biodiversity Authority) of the Act.
As can be seen from the present case between Sabyasachi /H&M and local Indian craftsmen/artisans, there has to be an ecosystem wherein both parties can mutually benefit from the other, and avoid one-sided exploitation. For example, on one hand, designers may have an acute need to utilize designs of Indian craftsmen for their ethnic-wear collections. On the other hand, such local craftsmen/artisans may need the widespread reach and popularity of famous designers/fashion brands to elevate their local communities and businesses. This analogy is not restricted to the fashion industry, and can encompass a wide gamut of goods and services.
While the TKDL or a new repository akin to the TKDL can take care of the access aspect of ABS in the present context, a legal framework akin to the BD Act can correspondingly be responsible for ensuring fair and equitable sharing of benefits of use of such traditional knowledge, either with the community identified, or with a general purpose fund from which benefits may be proportionately disbursed to the communities. In fact, a combination of certain words/terms used in Section 21 of the BD Act itself, coupled with other relevant ones such as compensation, can be used as a basis on which a skeleton framework can be proposed:
· Grant of joint ownership of intellectual property rights;
· Transfer of technology;
· Computation of fair and equitable monetary compensation/ royalties;
· Regulations regarding attribution; etc.
Further, such expanded use of the repository or that of a new/different repository, may also contain names which prima facie may not be appropriate to be trademarked, unless the same have been filed by the appropriate communities/persons/societies, as usage thereof by unrelated businesses would be against the rights of the said communities/ people. For instance, a search on the Indian Trade Mark Registry’s website would reveal that some people have in fact succeeded in trademarking names such as NAVAJO (registration no. 2090535) and SIOUX (registration no. 2064265), which while not of Indian origin, are still names of tribes/communities, and usage thereof as trademarks by unrelated entities may be considered to be inappropriate. This would also make it easier for third parties such as Sabyasachi and H&M to conduct more thorough due diligence vis-à-vis possible IP violations and cultural misappropriations.
Interestingly, even the term ‘Sanganer’ has been the subject matter of trade mark applications in class 25 with respect to clothing related goods, some of which are abandoned. A relevant excerpt from the Registry’s website is copied below: