When Cultural Heritage Becomes a Trademark
A recent court ruling in Suzhou found in favour of Louis Vuitton against Molly Tea, ordering the latter to cease using a four-petal flower logo and pay 10.3 million yuan in compensation. The court determined the logo infringed upon Louis Vuitton’s registered trademark, sparking public debate as many Chinese citizens viewed the motif as resembling a traditional ornament. This case exemplifies a broader issue: symbols rooted in communal culture can be transformed into exclusive rights once registered as a trademark. A similar controversy arose when Aimé Leon Dore sold a shirt whose pattern was deemed to resemble traditional Indonesian batik. Following criticism, the product name was changed to ‘Batik Inspired Print Shirt’.
These cases reveal a fundamental imbalance. Large corporations possess the capital, registered trademarks, and legal teams to defend their interests swiftly. Cultural communities, conversely, often rely solely on public pressure to gain recognition for their heritage. However, not every use of a cultural element constitutes theft. Culture evolves through exchange and adaptation. The problem arises when companies erase the origins of a symbol and claim communal motifs as their own, or when they commercialise cultural patterns without providing any benefit to the source community.
Indonesia already has a legal foundation for protection. Article 38 of Law Number 28 of 2014 on Copyright stipulates that the state holds the copyright for traditional cultural expressions. Government Regulation Number 56 of 2022 further regulates communal intellectual property. This protection applies even if the expression has not been formally recorded. However, the phrase ‘held by the state’ must not negate the community’s role. The state should act as a guardian, while the community remains the primary custodian. Communities must be involved in determining meaning, usage boundaries, and forms of commercialisation. This approach aligns with the UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, which places communities at the centre of protection. Intangible cultural heritage is not merely objects, motifs, or products; it encompasses practices, knowledge, skills, expressions, and meanings that are inherited and continuously recreated by communities.
Consequently, the inscription of Indonesian Batik on the UNESCO Representative List in 2009 does not simply refer to fabric patterns. The recognition includes techniques, symbolism, skills, social practices, and the transmission process. A UNESCO inscription is not a certificate of ownership, nor does it grant a state a monopoly over all forms resembling a cultural element. Its purpose is safeguarding, respect, awareness-raising, and international cooperation. Nonetheless, the nomination process serves a preventive function. The Intergovernmental Committee for the 2003 Convention consistently assesses how a nominating state addresses the impacts of commercialisation. States must explain threats to the element, safeguarding measures, community involvement, and how social functions and cultural meaning are maintained. The Committee has stressed that economic opportunities must not override safeguarding objectives, and states must distinguish safeguarding from mere brand promotion or product labelling. Safeguarding plans must anticipate decontextualisation, changes in meaning, and excessive commercialisation.
Indonesia’s regulatory protection faces jurisdictional limits. National copyright laws and regulations do not automatically bind companies abroad. While they can serve as evidence of origin and prior use, halting sales, cancelling trademarks, or claiming damages must follow the laws of the country where the violation occurs. International law does not yet provide comprehensive protection for traditional cultural expressions. Therefore, inventory alone is insufficient. Indonesia needs an actionable commercialisation governance framework. First, cultural expressions must be classified: some are open to the public, others require attribution, some need permission and benefit-sharing, and sacred elements should not be commercialised at all. Second, the government should establish a one-stop licensing service connecting businesses, local governments, and communities. Applicants must explain their product, production scale, marketing area, and form of adaptation. Third, large-scale commercial use should be governed by licensing contracts that stipulate attribution, usage limits, duration, compensation, and prohibitions against derogatory use. Benefits can include royalties, training, documentation, promotion, or regeneration of cultural practitioners. Fourth, products must clearly state their source of inspiration, distinguishing the culture of origin, design location, and production site. Transparency protects both communities and consumers. Fifth, Indonesia needs a cross-border response team involving the Directorate General of Intellectual Property, the Ministry of Culture, the Ministry of Foreign Affairs, local governments, legal experts, and global community representatives. If a symbol is registered as a trademark abroad, Indonesia can file an objection or seek cancellation in that country. If products are sold via digital platforms, complaints can be lodged with the platforms. Depending on the severity of the violation, actions can range from formal warnings and licensing negotiations to mediation and lawsuits.