From cultural symbols to commercial marks: a quantitative analysis of the trademark law protection of intangible cultural heritage in China

Abstract

The issue of trademark law protection of intangible cultural heritage (ICH) is inevitably encountered in the conversion from cultural symbols to commercial marks. Although academic circles are still discussing this, the practice has already begun. This paper investigates the status of the trademark law protection of ICH in China from the perspective of the application and registration data of ICH trademarks. According to a quantitative analysis of 12 123 items of ICH trademark searching data in China, it can be seen that the trademark protection of ICH is not optimistic, the trademark use of ICH symbols is in a disordered state, and many ICH trademark applications may cause distortion, derogation, or dilution to the connotation of the ICH. As a result, excluding trademark squatting by outsiders and decentralized registrations by indigenous peoples, and orderly utilizing of ICH symbols under a collective trademark or a certification trademark, should be determined as the basic goal of trademark law protection of ICH. To achieve this goal, the solution of ‘exclusion plus unified utilization’ should be adopted in practice. According to this plan, indigenous peoples, the trademark office, courts, and the Center of ICH Protection need to collaborate and improve the trademark law protection of ICH through awareness-raising, actions, institutions, and information.