Trademarks protect visually perceptible signs124 (including colors, numbers, images, letters, and product shapes) that distinguish the goods or services of different undertakings. Depending on the applicable national law, trademarks may be acquired through use or by registration.
124 Some countries also admit the protection of signs that cannot be captured by the eye, like sounds and smells.
Trademarks do not protect the knowledge or technology incorporated in a trademarked product and, hence, do not impede the commercialization by a third party of an imitative product under a different trademark, or without a trademark. In addition, since the basic function of a trademark is to distinguish the products (or services) of one enterprise from those of other enterprises, the protected sign must be different from the generic denomination of the product.
Local/indigenous communities could acquire trademarks subject to compliance with national rules on ownership and representation. Given the collective nature of a good part of TRM knowledge, “collective marks” or “certification” marks may be particularly suitable. Such marks are used by a group of producers - generally the members of an association - and may serve to distinguish the geographical origin or other common characteristics or quality of certain products. The acquisition of a collective or certification mark normally requires the submission of approval of regulations for the use of the mark.125
125 A “collective” mark is generally owned by an association that does not use it. Use is done by the members of the association. The owner should ensure that the relevant standards are complied with by the authorized users. The main difference between “collective” and “certification” marks is that the former can only be used by the members of the association, while the latter can be used by any undertaking, even if not belonging to a particular association, that complies with specified standards. See, e.g., WIPO, 1997, p. 185.
Trade marks may be as important for the marketing of TRM-based products126 as for any other medicine, depending on the strength of the mark, the particular conditions of the relevant market and the prevailing prescription practices of healers and physicians. Domestic companies may benefit from trademarks identifying medicines derived from TRM systems. Trademarks can also be useful to local/indigenous communities if they decide to commercialize themselves certain products, provided that they are able to monitor its use and enforce their rights in cases of violation. The use of collective marks or certification may have the benefit of providing a specific badge of approval of a local or indigenous community, in addition to give an indication of geographically dependent qualities of products.
126 An example, in other area of traditional knowledge, is provided by Aboriginal and Torres Strait Islander artists in Australia, who have obtained a national certification trademark.
As with other IPRs, as discussed below, the effectiveness of trademarks as a means of promoting the commercialization of TRM will depend on the title-holders’ capacity to exercise their rights, so as to the deter the commercialization of infringing products. Moreover, the value of trademarks, as well as of geographical indications, depends on the capacity to establish and preserve product homogeneity and quality standards, and on investments, sometimes substantial, in promotion and marketing. In other words, protection by such signs does not automatically guarantee that they would generate added value for the right holders.