“Heritage” by artist Andy Everson of the K’ómoks First Nation. The piece features the majestic Comox Glacier, which overlooks the Comox Valley. The glacier is referred to by the Comox people as “Queneesh”, or white whale, and refers to the creature which tied the early Comox people to their territory during a great flood many of thousands of years ago.

Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode, and a 2L JD Candidate at Osgoode Hall Law School.

In 1996, the against an Indigenous artist from a different tribe over the use of the trademark “Queneesh”, which had been used to describe the defendant’s art business. Comox First Nation alleged that only the band had the right to use the term “Queneesh” because of its significant cultural meaning, being the name of both a Comox legend and its development corporation. The court ultimately decided against the band because “Aboriginal rights are outside the scope of trademark law.”

Cases like this raise questions about the scope of intellectual property (IP) law in Canada. In developing tests to determine the ambit and nature of Aboriginal rights and title (in and ), the Canadian judiciary has repeatedly emphasized taking into account So, at least some elements of Indigenous culture are inherently important enough to warrant constitutional protection. As William Fisher notes in , traditional cultural expressions (TCEs) are often “central to the identities of indigenous groups,” and unauthorized use of them “corrodes those identities,” especially when the knowledge or expression in question is religious or artistic in nature.

The challenge arises in attempting to balance the protection of cultural expressions, the free exchange of these experiences, and the accessibility of the formal IP system to all. High costs and complex processes that are often associated with the registration, renewal, or enforcement of IP protection often serve as for Indigenous peoples seeking to use the formal IP system.

Many other issues stem from the fact that the formal IP system and traditional cultural systems are often based on competing worldviews. Formal IP laws in Canada tend to only recognize known individual creators or owners as holders of IP rights, which can be difficult to square with Indigenous outlooks of “ownership”. The has noted that “indigenous peoples do not view their heritage in terms of property at all…but in terms of community and individual responsibility…For indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights.”��

Trademark law in particular has the benefit of granting collective rights and can also provide perpetual protection. In order to receive protection under, however, , and some aspects of, for example, indigenous folklore, may not meet this definition.

A compound approach involving both Indigenous customary laws and contemporary intellectual property regimes should be implemented to protect indigenous TCEs in Canada. For instance, certain individuals or groups within an Indigenous community may be deemed as “custodians” of TCEs, authorized to . Contemporary IP systems may supplement more effective implementation or provide sustainable regimes where prior consent is given by the traditional owners of the TCE.��

As explained by Professor Erica-Irene Daes, “there is usually an individual who can best be described as a custodian or caretaker of each song, story, name, medicine, sacred place and other aspect of a people's heritage.”[1] Michael Harkin gives the example of songs and dances associated with the Kawkiutl potlatch tradition, which are “under the exclusive possession and control of particular individuals.”[2] With the existence of such individual “middle persons” in the relationship between Indigenous nations, their TCEs, and the remainder of the world, incompatibilities between contemporary IP regimes and Indigenous worldviews can potentially be reconciled through rigorous and effective consultation, as well as other means of seeking informed consent, on the part of non-members and non-authorized users.

On June 21, 2021, Bill C-15, the , received Royal Assent. Two provisions within the Declaration are particularly salient to discussions on Indigenous rights and protections:

[Article 11] Indigenous peoples have...the right to maintain, protect and develop the past, present and future manifestations of their cultures...

��[Article 31] Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Taken together, these articles call for the enhanced autonomy of Indigenous peoples to implement their own laws and traditions on matters concerning their people, as well as to “maintain, control, protect, and develop” that which belongs to them. They also serve to reaffirm a fundamental link between protection of Indigenous intellectual property rights and the revitalization of their cultural traditions and customs. Therefore, indigenous customary laws should be recognized as the best-suited mechanism for dealing with the sui generis nature of indigenous cultural property, and also the most just, as it would promote Indigenous autonomy and sovereignty over indigenous affairs.

[1] Erica-Irene Daes, “Intellectual Property and Indigenous Peoples” (2001) 95 Am Socy Intl Proc 143 at 183.

[2] Michael Harkin, Privacy, Ownership and the Repatriation of Cultural Properties: An Ethnographic Perspective from the Northwest Coast (2001) 5 at 306 (unpublished manuscript).

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North American professional sports, in general, are far from a beacon of political correctness. Vivid imagery of racial stereotypes is strewn throughout the professional sports landscape with teams like the Atlanta Braves, the Edmonton Eskimos, and most famously, the Washington Redskins. In recent years, public scrutiny over their use has attracted a number of noteworthy legal decisions.

In June 2014, the Washington Redskins found themselves at the wrong end of a after the United States Patent and Trademark Office cancelled six of their trademark registrations for “Redskins”. In that case, petitioners sought cancellation of the marks on the ground that the registrations were obtained contrary to , a provision that prohibits registration of marks that may disparage persons or bring them into contempt or disrepute. The appeal board that the registrations must be cancelled “because they were disparaging to Native Americans at the respective times they were registered.”

In another similar incident in 2016, ahead of a hotly contested playoff matchup between the Toronto Blue Jays and the Cleveland Indians, Indigenous activist and renowned architect Douglas Cardinal sought an against Cleveland preventing them from using, displaying, or broadcasting their team name or logo. Cardinal grounded his claim in the , noting that use of the name and logo constituted discrimination against him on the grounds of race, ancestry, colour, ethnic, and national origin. Ultimately, the court ruled against Cardinal and the application was dismissed. However, all was not completely lost. Beginning in the 2019 season, the “Chief Wahoo” logo from all uniforms.

Use of Indigenous names, symbols, and practices in sports is a complicated issue. On one side, there are the fans, who have developed an attachment to the team, its history, and traditions. On the other are Indigenous peoples, who were forced onto reserves, forced to attend residential schools, and forbidden from practicing some of the actions that fans of these teams have adopted. While the leagues and teams will argue that contemporary use of the names and images has shifted towards honouring and respecting Indigenous peoples, a of Twitter commentary has shown otherwise. In an with CBC, Jason Black, Fulbright Research Chair at Brock University's Centre for Canadian Studies, explained that “As people see [Indigenous] folks, in particular in stereotyped ways, the less likely they are to do things like reconcile”. "They're less willing to understand Indigenous history or vote for a particular candidate who has Indigenous reform in mind.” And so, a vicious cycle of racism and inaction spreads.

Teams seeking to make meaningful changes in their organizations should be cognizant of the 93 recommendations put forward by the (TRC) in 2015. Specifically, Call to Action 92, which calls on the corporate sector to adopt and apply the principles set forth in the (UNDRIP). This includes meaningful consultation, and free, prior, and informed consent with Indigenous peoples before proceeding with economic developments. In other words, teams need to engage in proper consultation with Indigenous people when it comes to team logos, branding, or any other activity that may reasonably affect them.

A recent by True North Sports and Entertainment, owners of the Winnipeg Jets and Manitoba Moose hockey clubs, shed some light on what this might look like in practice. In January, the Winnipeg Jets, along with their minor-league affiliate the Manitoba Moose, unveiled a new special jersey design bearing Indigenous-styled logos. The jerseys were all part of the second annual Winnipeg Aboriginal Sport Achievement Centre () Night, and all proceeds from the sales of the jerseys are going towards Indigenous youth activities. Here, the jerseys were not designed by the teams, nor by Adidas (the official jersey sponsor of the NHL), but in consultation with local artist from Pimicikamak Cree Nation.

Initiatives such as this are important for building stronger relationships in the local community but are also key in the broader reconciliation picture. Had the Cleveland franchise assessed themselves more honestly and humbly in the face of litigation, looked at documents like UNDRIP or the TRC recommendations – the cost-benefit analysis (both commercially, publicly, and morally) would weigh in favour of reconciliation. While it may be a complicated issue, it should not stop teams from doing the right thing and thinking more critically and responsibly about their branding imagery. The rest of the sports world should look to the Jets for leadership in moving toward accountable reconciliation and away from racism.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

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