New Zealand would allow the trademark office to refuse to register a trademark when such use would likely offend a significant section of the community, including the Maori. A law already in effect in the United States empowers the USPTO to refuse registration of a mark that would bring into contempt or falsely suggest association with persons, institutions, beliefs, or national symbols. Native American tribes and other indigenous communities are protected by this law. The USPTO has set up a searchable database of official insignia of Native American tribes—the intent of the database is to prevent registration of marks confusingly similar to such insignia.

Visser concludes with a list of recommendations on the elements of a legal structure that facilitates protection of traditional knowledge.

# **Traditional Knowledge, Modern Knowledge, and Poor People’s Knowledge**

The category “traditional knowledge” includes traditional and tradition-based cultural expressions in forms such as stories, music, dance, artworks, and crafts, including symbols, marks, and other recurring expressions of traditional concepts. It also covers traditional agricultural, medical, and technical knowledge. “Indigenous knowledge” and “traditional knowledge” are more or less synonyms.

One characteristic is that such knowledge is handed down from generation to generation, usually as part of an oral tradition. Another is that its use is interwoven in a net of customary obligations and rights of the individuals and the community. Within indigenous communities, the practical and the spiritual/ceremonial dimensions of life overlap perhaps more than they do in modern communities. In addition, traditional knowledge suggests a sense of common or community ownership.

At the extreme, one might imagine a simple _analytical_ model in which people in modern society and in a traditional community each view the origin and ownership of knowledge in a manner parallel with how they view the origin and ownership of tangible property. Consider a stereotypical community of hunter-gatherers. People in such a community are aware that many unseen plants and animals are alive in the wild. Provisioning oneself is a matter of acquiring these rather than of creating them. They conceptualize knowledge in a similar way. People in modern society perceive innovation or creativity as access to and drawing from a hidden stock of knowledge—or, to use perhaps an overly sophisticated phrase, drawing from a divinely inspired subconscious.

Modern intellectual property law recognizes “common knowledge” as the property of all—the “public domain.” No one can obtain a patent or copyright for it. However, individuals can own _new_ knowledge. The conception here is that knowledge, like cars or carrots, is _produced_ through the efforts of people rather than taken from a stock that nature provides. The basic elements needed to claim a copyright or a patent are a creative step, an identified creator, and a basis to demonstrate that the claimant _is_ the creator. In short, to gain ownership of knowledge, it has to be novel and it has to be yours.

The requirements for patents and copyrights are different. The law presumes that if you write a new story or compose a new song, it is yours. If it comes down to defending your ownership in court, there are standards for what “new” means. To demonstrate that the song or story is yours it is useful to have a written copy, particularly one with a verifiable date on it. It is even better if you had deposited a copy with someone the law 25