The Draft Design Law Treaty’s forbidden words

A mere eight words halted meaningful negotiations on a draft treaty for eight years, after similar words brought negotiations on a different treaty to a standstill 20-plus years earlier. I call these words ‘forbidden words’ in the realm of international intellectual property as they have not, despite valiant effort on the part of many, been included in any major multilateral intellectual property agreement to date. The words are: traditional knowledge, traditional cultural expressions, and biological/genetic resources. This short chapter explores the controversy surrounding these words in the draft Design Law Treaty under discussion in the World Intellectual Property Organization’s (WIPO) Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications. It also considers the interplay with the International Legal Instrument Relating to Intellectual Property, Genetic Resources, and Traditional Knowledge Associated with Genetic Resources under discussion in a different WIPO committee that led to a breakthrough in negotiations in July of 2022. It concludes that the upcoming WIPO diplomatic conferences promise a fascinating exploration of the continuing struggle for these forbidden words to gain a long-sought place in the lexicon of international intellectual property agreements.