Traditional Knowledge and Cultural Materials Checklist: Source Identification, Community Consultation, Consent and Benefit Terms, Attribution Labels, and Filing Objections

By Casey Scott McKay · 2025-07-10

This checklist runs the use of traditional knowledge or cultural material from the first design review to the annual look back, in the order the decisions actually arise. It starts with the source identification step that most engagements skip and that produces nearly every public failure in this area, then works through tiering, the legal position stated honestly, identification of the right community and representative, a consultation that meets the free, prior, and informed standard, the agreement terms that matter, labels and notices, certification marks, and genetic resource provenance. Gate items mark the points where a project should stop. The traps are procedural: the unverified supplier design, the consultation opened after manufacture, the three-week response window, the marketing copy nobody reviewed, and the trademark filing that was never screened against section 2(a).

IP and Technology > Copyright | Checklist | Published 10 July 2025 - Updated 30 November 2025 | Casey Scott McKay - marksy.us

Summary. This checklist runs the use of traditional knowledge or cultural material from the first design review to the annual look back, in the order the decisions actually arise. It starts with the source identification step that most engagements skip, then works through tiering, the legal position stated honestly, identification of the right community and representative, a consultation that meets the free, prior, and informed standard, the agreement terms that matter, labels and notices, certification marks, and genetic resource provenance. Gate items mark where a project should stop.

Keywords: traditional knowledge checklist · cultural materials · source identification · community consultation · free prior and informed consent · benefit sharing · attribution terms · TK Labels · Indian Arts and Crafts Act · section 2(a) refusal · certification mark · genetic resource provenance · Nagoya compliance · NAGPRA · supplier design provenance

How to use this checklist

| Phase | What it establishes | Who runs it | Gate | |---|---|---|---| | 1. Source identification | What is being used and from where | Design and legal | No production on an unverified provenance | | 2. Tiering | Generic, community-specific, or restricted | Legal, with cultural advice | Tier three material is not used | | 3. Legal position | What the law does and does not reach | Legal | Position stated in full, not just copyright | | 4. Community and representative | Who has to be asked | Legal and external advisers | No agreement with an unrecognised party | | 5. Consultation | Free, prior, and informed | Business, led by someone senior | Consultation before the decision, not the launch | | 6. Agreement | Scope, attribution, process, benefits | Legal | Approval route staffed before launch | | 7. Labels and access tiers | Notice where contract is impossible | Institutions | Terms recorded in the catalogue record | | 8. Certification marks | Community control of authenticity | Community counsel | Governance funded, not just the filing | | 9. Genetic resources | Provenance and disclosure | Research and legal | No programme on undocumentable material | | 10. Process embedding | Prevention of the next instance | Operations | Provenance question in supplier onboarding |

The matter. A homewares brand is six weeks from launching a collection built around a woven pattern its Indian textile supplier provided from a design book. The marketing draft describes the range as "inspired by Native American craft traditions." The brand has cleared copyright in its own artwork, filed a trademark application for a product name taken from an indigenous language, and has not asked anyone where the pattern came from. Nobody in the business has identified a problem.

Phase 1. Identify the source

[ ] Obtain the artefact itself — the pattern, motif, melody, method, plant, or object — rather than a description.
[ ] Trace it backwards through every hand it passed through. Stock library, supplier design book, museum catalogue, photograph, trade show, consultant, or internal designer.
- Trap. Suppliers usually know more than the client expects and are almost never asked directly.
[ ] Put the question in writing to the supplier: which community does this originate from, and does it carry restricted meaning?
[ ] Search the visual and academic sources. Museum collections, ethnographic literature, and community publications frequently identify a pattern within an hour.
[ ] Record the answer, and record it when the answer is "unknown."
- Why. An unverified provenance is a decision, and it should be a recorded one taken by someone with authority.
[ ] [Gate] Do not commit to production on an unverified provenance. This single omission produces nearly every public failure in this area.

Phase 2. Tier what you find

[ ] Tier one: generic motifs with wide currency. Geometric forms, common colour conventions, and widely shared decorative devices. Record the judgement in a sentence and move on.
[ ] Tier two: community-specific expressions. Identifiable to a particular people. This is where the work in Phases 4 to 6 applies.
[ ] Tier three: restricted or sacred material. Limited by protocol to particular people, roles, ages, or occasions.
- Why. The correct advice here is usually that it should not be used at all, and counsel who cannot say so plainly is not adding value.
[ ] Record the tiering decision and its author, because a file showing that someone considered the question is materially different from one showing nobody asked, and the two are indistinguishable later unless it was written down.
[ ] [Gate] Stop tier three material immediately, regardless of the stage of production.

Phase 3. State the legal position in full

[ ] Copyright. Confirm that the traditional expression is unprotected under 17 U.S.C. § 102, given the originality and authorship requirements confirmed in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), and the duration rules of 17 U.S.C. § 302.
[ ] Confirm what copyright the client will hold in its own contribution, and say plainly that it does not extend to the traditional elements.
[ ] Check representation exposure. 25 U.S.C. § 305e creates a civil action and 18 U.S.C. § 1159 criminal liability for offering goods in a manner falsely suggesting they are Indian produced or the product of a particular tribe.
- Trap. The line is representation, not reproduction, and marketing copy crosses it far more often than product design does.
[ ] Check registration exposure. 15 U.S.C. § 1052(a) bars marks falsely suggesting a connection with persons or institutions, and it survived Matal v. Tam, 582 U.S. 218 (2017), and Iancu v. Brunetti, 588 U.S. 388 (2019), because it is a source rule.
[ ] Note the Dastar limit. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), confines "origin" in 15 U.S.C. § 1125(a) to the source of the goods, foreclosing the intuitive false-origin claim.
[ ] Check NAGPRA where objects, remains, funerary or sacred items, or cultural patrimony are involved, under 25 U.S.C. § 3001.
[ ] Check access legislation where biological material is involved.
[ ] Check platform and retailer policy, which is enforced faster and more cheaply than any statute.
[ ] State the reputational exposure separately, and do not attempt to quantify it as a legal risk.
[ ] [Gate] Do not deliver a memorandum that stops at copyright. It answers the wrong question confidently, which is the characteristic failure of legal advice in this field.

Phase 4. Identify the community and the representative

[ ] Establish which community or communities the expression belongs to, expecting that a motif may be shared among several related peoples.
[ ] Establish who speaks for it. An elected government, a hereditary authority, a cultural or heritage office, an elders' council, an artists' cooperative, or a designated organisation — and frequently more than one.
- Trap. Consulting only the body easiest to reach is a recognised failure mode and produces an agreement that provides no protection.
[ ] Look for a published protocol. Many communities have one, and following it resolves most procedural questions in a single step.
[ ] Ask the community how it wishes to be engaged, rather than proposing a process.
[ ] Budget to pay for the engagement. Consultation costs the community time and expertise.
[ ] Record who was approached, when, through whom, and what was said.
[ ] [Gate] Do not treat an individual's approval as community consent unless the community recognises that individual's authority for the purpose.

Phase 5. Run the consultation

[ ] Free. No coercion, including the implicit coercion of "we are proceeding anyway, and this is your chance to shape it."
[ ] Prior. Before the decision, not before the launch.
- Trap. A consultation opened after manufacture is a negotiation about damage, and communities identify it instantly.
[ ] Informed. The specific use, the volume, the markets, the duration, the pricing, and what the company will earn.
[ ] Bring the real proposal: images, samples, marketing concepts, and the commercial model.
[ ] Be explicit about what is not negotiable, including any fixed launch date.
[ ] Allow months, not weeks. A council cycle, a seasonal constraint, or consultation with knowledge holders cannot be compressed.
[ ] Decide in advance what happens if the answer is no, and record the decision.
- Why. A consultation the client is unwilling to lose is not a consultation.
[ ] Confirm the outcome in writing, in plain language, and send it back before treating it as agreed.

Phase 6. Document the agreement

[ ] Scope. Which expressions, in which products, in which media. Avoid "inspired by," which grants nothing definable.
[ ] Duration and territory, with a defined renewal process.
[ ] Attribution. How the community is named, in what form, and where — packaging, labelling, marketing, listings — with community approval of the wording.
- Why. This is frequently the cheapest term for the company and the one the community values most.
[ ] Modification limits. Which elements may be altered and which are immutable, including colour, scale, and orientation where protocol requires.
[ ] Context conditions. Where and how the product may be presented, and any prohibited associations.
[ ] An approval route for new uses, with a named contact and a response time.
[ ] Benefit sharing, monetary and non-monetary — training, equipment, employment, market access, or support for the community's own production.
[ ] An objection and withdrawal route, with a defined response and, for longer arrangements, circumstances requiring use to cease.
[ ] A statement that the company claims no ownership of the traditional expression.
- Why. It costs nothing, it is almost always true, and its absence is the term communities most often ask about.
[ ] Dispute resolution with a mediated first stage, and a governing law chosen with attention to the community's position.
[ ] [Gate] Confirm the approval route is staffed and named before launch, or it will not exist when it is needed.

Phase 7. Labels, notices, and access tiers

[ ] Apply Traditional Knowledge Labels to digital records where the community wishes, expressing its protocols for use, attribution, circulation, and seasonality.
- Note. They carry no legal force. They give downstream users notice of terms they would otherwise have no way of learning.
[ ] Record the terms in the catalogue record itself, not in a separate policy, because the catalogue record is what travels with the material.
[ ] Design a tiered access model for institutional collections: fully open; open with contextual notice; on request with community consultation; withheld.
[ ] Confirm the tiering was decided with the community, not for it.
[ ] Use biocultural labels for genetic resources and associated knowledge, which journals and funders increasingly request.
[ ] [Gate] Do not treat copyright clearance as the access decision. It answers none of the questions that determine the tier.

Phase 8. Certification and collective marks

[ ] Consider a certification mark under 15 U.S.C. § 1054 where the community's concern is that others sell goods falsely claiming authenticity.
[ ] Draft the standards: production by community members, traditional methods, community authorisation, defined materials.
[ ] Establish the governance: a decision-making body, an application process, verification, records, and an appeal route.
- Why. Governance is the project. The filing is the easy part, and it is why this well-fitted tool is so little used.
[ ] Confirm the owner does not itself sell the goods, applies the standards even-handedly, and does not discriminatorily refuse to certify compliant goods.
- Trap. Failure on any of these risks cancellation under 15 U.S.C. § 1064.
[ ] Consider a collective membership mark as a lighter first step, indicating membership rather than compliance with standards.
[ ] Register the community's official insignia in the Patent and Trademark Office database, which supports examiner refusals and provides notice.
[ ] Explain the limit. It does not stop copying; it stops the copier claiming authenticity, with the ordinary remedies of 15 U.S.C. § 1117.

Phase 9. Genetic resource provenance

[ ] Record for every sample: country and location of collection; date; collector; permit or authorisation; attached terms; whether prior informed consent was obtained and from whom; whether traditional knowledge directed the selection and from which community; and the full chain of custody.
[ ] Read every material transfer agreement, because repositories routinely impose downstream obligations that survive transfer.
[ ] Check whether the source state is a Nagoya party and what its national legislation requires. The obligation follows the resource, not the researcher's nationality.
[ ] Separate state consent from community consent. Different obligations, different counterparties.
[ ] Consider defensive publication, noting that documented knowledge becomes prior art under 35 U.S.C. § 102 — and that publishing to prevent patents also destroys secrecy.
- Why. That decision belongs to the community; counsel's job is to state both consequences accurately.
[ ] Plan for the disclosure requirement introduced by the 2024 WIPO treaty on intellectual property, genetic resources, and associated traditional knowledge, and already imposed in several jurisdictions.
[ ] [Gate] Do not begin a programme on material whose provenance cannot be documented. Unanswerable provenance appears in diligence, in publication review, and in prosecution, and cannot be repaired later.

Phase 10. Embed the prevention

[ ] Add a design provenance question to supplier onboarding. Where did this originate, and does it carry cultural significance? Require an answer, not a warranty.
[ ] Create a design review gate, with one named reviewer holding authority to escalate.
[ ] Route all marketing copy through legal where it claims tribal, Indian, indigenous, or community origin.
- Why. Representation exposure under 25 U.S.C. § 305e arises from copy, and copy is reviewed least.
[ ] Screen every trademark filing using a community name, a term from a community language, or a culturally significant symbol against 15 U.S.C. § 1052(a) and the tribal insignia database before filing.
[ ] Embed provenance capture in the sample management system for research programmes.
[ ] Name the escalation decision-maker, and require the basis for each decision to be recorded.
[ ] Review annually: what is in use, on what terms, and whether anything has changed on either side.
[ ] [Gate] Confirm these controls exist as process, not as policy. A policy nobody reads prevents nothing.

Outcome. At the end of this checklist a business should be able to say, from records that exist: what cultural material it uses and where each item came from; how each was tiered and by whom; what the legal position is across copyright, representation, registration, objects, and access law; which community was consulted, through which representatives, when, and what was agreed; how attribution appears and who approved the wording; what benefits were actually delivered; and what controls prevent the next instance from arriving unexamined. A business that can say those things has behaved defensibly whether or not every decision was the one the community would have preferred. A business that can say only that the material was unprotected has answered the one question nobody was asking.

Phase 11. Working the matter in the opening example

Applied to the homewares brand described above, the checklist produces four findings and one recommendation, in about a day.

[ ] The pattern has an unverified provenance. A written question to the textile supplier identifies where the design book entry came from, and an hour in museum collections usually identifies the community. Until that is done, nothing else can be assessed.
[ ] The marketing copy is the real exposure. "Inspired by Native American craft traditions" is a representation about origin, and goods offered in a manner falsely suggesting they are Indian produced engage 25 U.S.C. § 305e and 18 U.S.C. § 1159. The design may be lawful; the sentence may not be.
[ ] The trademark filing was never screened. A product name taken from an indigenous language should have been assessed under 15 U.S.C. § 1052(a) and searched against the tribal insignia database before filing, and a refusal after the brand is built is a rebrand.
[ ] The copyright clearance answered a question nobody asked. Original artwork, cleared photographs, and a valid claim to the client's own contribution — none of which addresses any of the three findings above.
[ ] The recommendation is proportionate and quick. Rewrite the copy so it makes no origin claim. Pause the trademark application pending screening. Establish the pattern's source. If it is community-specific, make contact before launch with a concrete proposal — and if six weeks is genuinely insufficient for a real consultation, say so and let the business decide with the facts rather than discover them afterwards.
[ ] [Gate] The decision to launch without consent, if that is the decision, is taken by a named person on the record. It is a legitimate commercial choice and it should not be arrived at because the timetable ran out.

Phase 12. Acting for the community

[ ] Inventory what the community regards as its own, and what is already circulating commercially without authorisation.
[ ] Separate what can be protected from what cannot, honestly and at the outset. Most traditional expression is unprotected under 17 U.S.C. § 102, and a community told otherwise will discount every later piece of advice.
[ ] Map the available instruments. Certification or collective marks under 15 U.S.C. § 1054; oppositions and cancellations under 15 U.S.C. § 1052(a) and 15 U.S.C. § 1064; Indian Arts and Crafts Act claims under 25 U.S.C. § 305e; copyright in contemporary works by community artists; trade secret under 18 U.S.C. § 1839 where knowledge is genuinely restricted; NAGPRA claims under 25 U.S.C. § 3001; platform policy complaints; and the community's own protocols and labels.
[ ] Register the official insignia in the Patent and Trademark Office database.
[ ] Set up a watch on trademark filings using community names, terms, and symbols, so oppositions are filed in time rather than cancellations attempted later.
[ ] Weigh defensive publication with the community, stating both consequences: prior art status under 35 U.S.C. § 102, and permanent loss of secrecy.
[ ] Build a standard licence template so each approach does not require a negotiation from nothing.
[ ] Establish the representative process — who decides, on what timetable, with what record — before the next company makes contact.
[ ] [Gate] Prepare for the approach rather than only for the objection. A community with an inventory, a process, standard terms, and a certification programme can say yes on its own terms, which is a stronger position than being able only to complain afterwards.

Phase 13. Sector screens

[ ] Fashion and home goods. The largest source of public disputes and the weakest controls. Designs arrive through suppliers, stock libraries, and trend services unexamined. Phase 1 and Phase 10 are the whole answer.
[ ] Cosmetics and personal care. Ingredient sourcing engages access legislation, and marketing frequently invokes traditional use — simultaneously a substantiation problem and an attribution problem. Route the copy through both reviews.
[ ] Food and beverage. Names, recipes, and methods, with certification marks and geographical indication analogues fitting unusually well, and the strongest record of successful community-owned certification programmes.
[ ] Music and audio. Two distinct issues: copyright in a field recording, held by an archive or label, and the community's interest in the underlying performance, which is unprotected and matters more.
[ ] Pharmaceuticals and natural products. Phase 9 is the entire compliance programme, and it must be built at collection.
[ ] Games, film, and publishing. Depiction rather than reproduction, where consultation improves the work as well as reducing complaint.
[ ] Museums, libraries, and universities. Phase 7 plus 25 U.S.C. § 3001 obligations for objects and remains.
[ ] Retail platforms. Policy compliance is the operative regime, enforced faster than any statute. Read the policy, not the case law.

Phase 14. Responding when it has gone wrong

[ ] Establish the facts before responding publicly. What was used, from where, obtained how, represented as what, at what volume, over what period.
[ ] Separate the legal exposure from the commercial exposure, and advise on each distinctly.
[ ] Do not answer a cultural objection with a legal opinion.
- Why. A statement that the company was entitled to do it is usually true and reliably converts a complaint into a story.
[ ] Make contact through the community's own representatives, privately, before any public statement, with something concrete to offer.
[ ] Decide what is genuinely available: withdrawal, a pause, attribution, payment, partnership, a licence going forward, or a change of process.
- Trap. Vague expressions of respect are read as refusals, because that is what they usually are.
[ ] Check the specific statutory exposure: Indian Arts and Crafts Act claims, pending applications vulnerable under section 2(a), platform complaints already filed, and institutional obligations under NAGPRA.
[ ] Fix the process and say what was fixed. A procedural remedy is credible; a donation announced without a process change is not.
[ ] Take the lesson across the business, because the gap that produced this instance is producing others right now.

Phase 15. The documents this checklist should leave behind

[ ] A provenance record for every design, motif, recording, or material in use.
[ ] A tiering decision for each item, with its author and reasoning.
[ ] A full legal position memorandum covering copyright, representation, registration, objects, access law, platform policy, and reputation as separate headings.
[ ] A consultation log: who, when, through whom, what was proposed, what was said, what was agreed.
[ ] The agreement, with scope, attribution, modification limits, context conditions, approval route, benefit sharing, objection route, and the no-ownership statement.
[ ] A benefit delivery record — what was actually provided, not what was promised.
[ ] A genetic resource provenance file built at collection.
[ ] A filing and copy screening record with the section 2(a) and Indian Arts and Crafts Act analysis for each item.
[ ] Certification programme documents where one exists.
[ ] The embedded process artefacts: supplier onboarding language, the design review gate, the named escalation decision-maker.
[ ] An annual review note.

Eleven documents, most of them a page. Together they distinguish a business that can explain what it did from one that can only explain that it was entitled to.

A note on proportion

A widely shared geometric border needs a sentence, not a programme. Treating every case as a full consultation exhausts the credibility required for the cases that matter, and commercial teams stop bringing questions to a function that answers all of them the same way.

Run the full checklist where the expression is identifiable to a specific community, where the commercial scale is material, where the marketing invokes cultural origin, or where the material may be restricted.

Run Phase 1 always. It costs an email and half an hour.

Run Phase 10 always. A provenance question in supplier onboarding and a review gate before production are permanent, cheap, and prevent the problem rather than remedying it.

Phase 16. A working timetable

[ ] Weeks one and two. Source identification and tiering. Stop anything in tier three.
[ ] Weeks two and three. Full legal position memorandum, with representation, registration, and reputation stated separately from copyright.
[ ] Weeks three to six. Identify the community and representatives, locate any published protocol, and make contact with a concrete proposal and an honest timetable.
[ ] Months two to five. Consultation, funded, at the community's pace.
[ ] Months four to six. Negotiate and document, process terms first.
[ ] Months five to seven. Implement: attribution wording approved, labels applied, marketing copy screened, approval route staffed and named.
[ ] Ongoing. Deliver the benefits, honour the approval route, and respond to objections within the agreed period.
[ ] Annually. Review use, terms, and any change on either side.
[ ] In parallel, from week one. Supplier onboarding language, design review gate, marketing copy routing, and filing screens — because those prevent the next instance, which is otherwise already in development.

A closing note

Every item in this checklist is administrative. None requires a novel legal theory, and none is difficult.

The failures in this field are almost never failures of analysis. They are failures to ask, early enough, a question that nobody's process contained — where did this come from, and has anyone asked?

Put those two questions into the process and most of the rest of this checklist becomes unnecessary, because the cases that would have gone wrong are identified while they are still cheap to fix.

Phase 17. Questions to put to the business

[ ] "Where did this design come from?" If the answer is a supplier's design book, the next question is where the supplier got it, and that question has an answer.
[ ] "Has anyone asked whether it carries restricted meaning?" Usually not, and the asking takes an email.
[ ] "What does the marketing copy claim?" Read the launch email, the product description, the packaging, and the listing text, not the design brief.
[ ] "What name have we filed?" And was it screened under 15 U.S.C. § 1052(a) and against the tribal insignia database?
[ ] "Who would decide if a community objected?" If nobody, the decision will be made by whoever answers the first email, under time pressure, in public.
[ ] "What would we do if they said no?" Ask before the consultation, not after.
[ ] "How many other products in the range have the same question?" Almost always more than one, and the audit is quicker than the second incident.

[ ] "Who else uses this pattern?" If the motif is already circulating widely under other brands, that is relevant to tiering and irrelevant to whether the community was asked, and businesses routinely treat it as answering both.
[ ] "What did we tell the retailer or the platform?" Wholesale copy, line sheets, and marketplace listings frequently contain origin claims the brand's own packaging avoids, and they are the documents an Indian Arts and Crafts Act claim would rely on.
[ ] "Is any of this in a campaign that runs after launch?" Influencer briefs, in-store signage, and seasonal creative are produced later, by other teams, from the same brief — and they are where the reviewed language reverts to the unreviewed language.
[ ] "When does the next collection freeze?" That date, not this one, is when the process changes have to be in place, and it is usually closer than anyone realises.

[ ] "Who owns this question inside the business?" If the honest answer is that legal sees it when someone remembers to send it, the process has no gate, and every finding in this checklist will recur on the next range regardless of how well this one is handled.
[ ] "And what would we say if a journalist asked us today?" The answer to that question, drafted honestly in two sentences, is a remarkably efficient test of whether the rest of the file is in order.

Phase 18. Institutional variants

[ ] Universities. Research ethics review and intellectual property review are separate processes that rarely speak, and a project cleared by one is routinely assumed to be cleared by both. Require provenance evidence at the funding stage, not at publication.
[ ] Archives and libraries. Legacy accessions frequently carry terms recorded in a donor file nobody has read in decades. An audit of what the collection holds, from where, and under what promises is a modest project that occasionally uncovers real obligations and far more often confirms there are none — which is itself worth knowing.
[ ] Broadcasters and publishers. Depictions, field recordings, and archival footage, where the rights position is usually clean and the community interest is usually unaddressed. Consultation improves the work.
[ ] Foundations and funders. Grant conditions are the fastest-moving instrument in this area, and a grantee's compliance obligation frequently exceeds anything the law requires.
[ ] Government agencies. Additional obligations under 25 U.S.C. § 3001 and tribal consultation policies, which apply to programmes and publications as well as to collections.

[ ] Startups and small brands. No process at all, and the same exposure as a large one on a smaller base. The entire programme for such a business is Phase 1, a screened marketing line, and a screened filing — three steps, an afternoon, and it removes almost all of the risk.

[ ] Licensees and franchisees. A brand that licenses its designs onward should push the same provenance question down the chain, because a licensee's launch copy will be attributed to the brand whether or not the brand wrote it.

[ ] Contract manufacturers. The same point in reverse: a factory offered a design should be able to say where it came from, and a brand that cannot answer should not be placing the order.

Key Authorities at a Glance

| Authority | Proposition | Where it bites | |---|---|---| | 17 U.S.C. § 102 | Originality and fixation | Phase 3 | | 17 U.S.C. § 302 | Duration | Phase 3 | | Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) | Originality requires an author | Phase 3 | | Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) | "Origin" means the goods | Phase 3 | | 15 U.S.C. § 1125(a) | False designation of origin | Phase 3 | | 25 U.S.C. § 305e | Indian Arts and Crafts Act civil action | Phases 3 and 10 | | 18 U.S.C. § 1159 | Criminal misrepresentation | Phase 3 | | 15 U.S.C. § 1052(a) | False suggestion of a connection | Phases 3 and 10 | | Matal v. Tam, 582 U.S. 218 (2017) | Disparagement clause struck | Phase 3 | | Iancu v. Brunetti, 588 U.S. 388 (2019) | Immoral or scandalous clause struck | Phase 3 | | 15 U.S.C. § 1054 | Certification and collective marks | Phase 8 | | 15 U.S.C. § 1064 | Cancellation grounds | Phase 8 | | 15 U.S.C. § 1117 | Remedies | Phase 8 | | 25 U.S.C. § 3001 | NAGPRA | Phases 3 and 7 | | 35 U.S.C. § 102 | Prior art; defensive publication | Phase 9 | | 18 U.S.C. § 1839 | Trade secret definition | Phase 6 | | WIPO Treaty on IP, Genetic Resources and Associated Traditional Knowledge (2024) | Disclosure of origin | Phase 9 | | Nagoya Protocol | Access and benefit sharing | Phase 9 | | Convention on Biological Diversity | Sovereign rights over resources | Phase 9 | | UNDRIP Article 31 | Free, prior and informed consent | Phase 5 | | Local Contexts TK and Biocultural Labels | Protocol notice | Phase 7 | | USPTO tribal insignia database | Filing screen and examiner notice | Phases 8 and 10 | | Traditional Knowledge Digital Library | Defensive publication in practice | Phase 9 |

The five things people get wrong

One: never asking where it came from. The design arrives from a supplier, a stock library, or a catalogue, and nobody asks the one question that determines everything that follows. Put it in writing to the supplier, search the visual and academic sources for an hour, and record the answer — including when the answer is "unknown," because that is a decision and it should be a recorded one made by someone with authority.

Two: stopping the analysis at copyright. The material is unprotected; the client's own artwork is original; the memorandum concludes there is no issue. It is correct and it is useless, because the exposure sits in representation under 25 U.S.C. § 305e, in registration under section 2(a), in platform policy, and in reputation. A copyright-only opinion answers the wrong question confidently, which is worse than answering nothing.

Three: consulting after manufacture. The collection exists, the launch date is fixed, and the community is invited to comment. Everyone involved recognises what that is. Prior means before the decision, and a consultation the client is unwilling to lose is not a consultation — so decide in advance what happens if the answer is no, and record that decision.

Four: reviewing the design and not the copy. Product design is examined by people who think about intellectual property; marketing copy is written by people who do not, and the phrase "authentic Native American" appears in the launch email rather than on the label. Representation is where the statutory line sits, so route the copy through legal and the artwork through the reviewer.

Five: filing before screening. A trademark application for a product name drawn from a community language, refused under 15 U.S.C. § 1052(a) after the brand has been built around it. The screen costs an hour — the section 2(a) analysis and a search of the tribal insignia database — and the refusal costs a rebrand.