Early this year, intellectual property department under the Ministry of Economic Affairs wrote to a company in France with regard to the selling of fabric materials of Kushuthara designs in France.
The company dealing with designs and manufacturing of traditional French fabrics, wallpapers, carpets, rugs, and furniture had reproduced Kushuthara design and textiles for commercial purpose without consent and failed to provide rightful source according to the department.
These trends of using traditional cultural expressions (TCEs) for the commercial purpose called misappropriation of TCEs are a growing concern among the traditional and indigenous communities in the world today.
The department’s in-house discussion in March last year concluded that the trend was beyond the scope of protection under most conventional IP laws such as patent, industrial designs, mark and copyright owing to the lack of definite ownership claim by a natural person.
“However, there are some avenues to protect these traditional textile works under another form of IP protection called geographical indication (GI), but presently, the GI form of IP protection is not present in the country’s IP laws,” the department said.
The department has, therefore, proposed for a GI provision in the current revision of IP Act 2001.
Officiating chief of Industrial Property Division, Tempa Tshering, said the legislation related to TCEs protection was non-existing.
“There is a need for the stakeholders concerned to come together and work for such legislation. IP laws protect only new inventions with a natural person as ownership. These traditional intellectual properties do not qualify for registration,” he said.
He added that the issue was discussed globally over 20 years. “Although the legislation to protect traditional healing practices are put in place, there is no protection and legislation relating to traditional arts and cultural expressions,” said Tempa Tshering.
Considered the most colourful and intricately woven textile in the country, Kushuthara’s origination in Khoma village, Lhuntse dates back to several centuries.
According to the Textile Arts of Bhutan by Susan S. Beans and Diana K. Myers, the Kushuthara has its origins in the kushung tunics worn in some parts of eastern and western Bhutan. While the origin of the word kushung is unknown, the local people in Kurtoe link the word to kushu, the name of the patterning technique unique to the dzongkhag. Thara, in tshangla, means a kira.
The department’s annual magazine 2018 stated that there were only a handful of legal instruments enacted to protect certain aspect of culture despite the importance of culture enshrined in the Constitution.
The Constitution of the Kingdom of Bhutan recognizes the importance of cultural heritage. Article 4 of the constitution states that the state shall endeavour to preserve, protect, and promote cultural heritage to enrich society and the cultural life of the people.
The department’s in-house discussion recommended the interim option to explore national and international registration of Kushuthara under collective mark by the competent authority and express concerns to the France Company through an appropriate channel.
The discussion also recommended the authorities concerned to continue refining and building traditional textiles documentary evidence with reference to all available sources to serve as prima facie evidence in the event of any disputes with the infringers.