I. Introduction
When Prada produced footwear resembling the traditional Kolhapuri chappals (sandal), the controversy went beyond the debate on copyright infringement. It raised a more fundamental question. What happens when intellectual property law encounters cultural knowledge that belongs to no single inventor? The Kolhapuri chappal is protected as a geographical indication, however, the cultural significance embodied within the shoes poses a question that geographical indication cannot solve.
This difficulty extends beyond traditional crafts. Turmeric and neem have demonstrated how Traditional Knowledge as “TK” can remain invisible within patent systems designed around individual innovation. India responded through the Traditional Knowledge Digital Library as “TKDL” while the 2024 WIPO Treaty introduced an international disclosure requirement concerning genetic resources and associated TK. Yet visibility is not ownership. This article argues that disclosure may prevent wrongful claims over existing knowledge, but it does not answer the question of what communities should receive when their knowledge contributes to commercial value.
II. When Culture Enters Intellectual Property
The language of intellectual property can make cultural heritage appear deceptively easy to classify but it is not. TK generally refers to knowledge, skills, innovations, and practices developed and transmitted within a traditional context, including medicinal and agricultural knowledge. Traditional cultural expressions concern the forms through which culture is expressed, including designs, handicrafts, music, performances, and narratives.
This distinction is important. For example, when considering the controversy surrounding the Kolhapuri – Prada dispute as held in the case of Prof. Adv. Ganesh S. Hingmire and Others v. P rada Group & Others. Nonetheless, the Kolhapuri chappal is not only an artefact but also embodies knowledge regarding a biological resource. The Kolhapuri chappal’s design, skill, geographic source, and community of producers define its importance. It therefore raises questions concerning traditional cultural expressions and geographical indications that are different from those raised by the use of traditional medicinal knowledge in a patent application.
Treating these products as manifestations of a single problem of “cultural appropriation” can obscure the different legal mechanisms available for their protection. More importantly, cultural value does not always translate into an identifiable legal owner.
III. The Problem of Invisible Knowledge
The turmeric dispute exposed a fundamental weakness in patent law. The United States Patent and Trademark Office granted a patent covering the use of turmeric for wound healing. India’s Council of Scientific and Industrial Research challenged the patent by producing evidence of the longstanding use of turmeric for this purpose in India. The patent was subsequently cancelled following reexamination because the claimed use lacked novelty. The neem dispute presented a similar difficulty. A European patent concerning the fungicidal properties of neem was challenged with evidence of prior knowledge and use in India. The European Patent Office ultimately revoked the patent in 2000.
These disputes are often reduced to instances of biopiracy. But, these disputes merely capture the concern and not the underlying disputes. The issue at hand was evidentiary. Knowledge familiar to Indian communities was not necessarily accessible to patent examiners in a form they could reasonably identify as prior art. Much of it existed in Sanskrit and other Indian languages, traditional texts or practices transmitted within communities. The turmeric dispute therefore showed that documentation alone was insufficient if patent examiners could not access or recognise that knowledge as prior art.
IV. India’s Response: Making TK Visible
India’s response was therefore to address the evidentiary problem before the dispute knocks on the courtroom door. In 2001, the Council of Scientific and Industrial Research, in collaboration with the Department of Indian Systems of Medicine and Homoeopathy, established the “TKDL”. Its objective was to convert information from traditional Indian medical systems into a structured and searchable database that patent examiners in different jurisdictions could use when assessing patent applications.
The significance of the TKDL lies in this transformation of accessibility. TK that previously existed in texts, local practices, and languages unfamiliar to foreign patent offices could now be searched as prior art. WIPO records that the database has been made available to patent offices under access agreements and has been used to assist examiners in assessing patent applications concerning Indian TK. Indian patent law complements this defensive mechanism. Section 3(p) of the Patents Act 1970 excludes from patentability an invention which, in effect, is TK or merely duplicates known properties of traditionally known components.
Yet the TKDL should not be mistaken for a complete proprietary regime. Its principal function is to prevent others from obtaining patent rights over knowledge that is already known. It does not confer an equivalent property right on the communities that generated that knowledge. In this sense, India succeeded in bringing TK into the light of day without necessarily solving the harder question of who should own, give consent to or profit from its commercial use. This distinction becomes crucial when examining the international response that followed.
V. The WIPO Treaty
The TKDL also exposed the limits of a purely national response. Patent applications move across borders, while TK often originates in communities whose legal and institutional access to foreign patent systems is limited. The adoption of theWIPO Treaty on Intellectual Property, Genetic Resources and Associated TK on 24 May 2024 therefore represents an important shift from national defensive strategies towards an international response. The Treaty introduces a mandatory disclosure requirement for patent applications where the claimed invention is based on genetic resources and, in specified circumstances, associated TK. It is necessary for an applicant to reveal the country from which the genetic resources were obtained or the source, where necessary. In case the invention relies upon TK, the applicant must also disclose the name of the Indigenous Peoples or local community from which such knowledge has been sourced.
Traditionally, the central inquiry has been whether the subject matter of the alleged invention meets the requirements of novelty and inventive step. The Treaty adds another layer and asks where did the material or knowledge underlying this invention come from? In doing so, it seeks to improve the transparency and quality of patent examination and reduce the possibility of erroneous grants involving genetic resources and associated TK.
The significance of the Treaty, however, lies precisely in what it does not claim to accomplish. It does not establish a universal property right in TK, nor does disclosure automatically transfer ownership or guarantee monetary compensation to the community concerned. The Treaty is therefore best understood as a procedural intervention into patent law rather than a comprehensive regime for community ownership. That distinction is crucial. Making the source of knowledge visible is an important correction to the failures exposed by turmeric and neem, but it leaves open the harder question of what legal consequences should follow once that source has been identified.
VI. Disclosure is not Ownership
The real difficulty begins after disclosure. Identifying the source of TK does not determine what rights, if any, the originating community acquires. This becomes particularly important where TK contributes to an invention that independently satisfies the requirements of patentability. Disclosure records provenance; it does not, by itself, determine ownership or entitlement to compensation.
The problem becomes even clearer when viewed through the Kolhapuri – Prada controversy. Its significance lies in the accumulated craftsmanship and cultural identity represented by the sandal. A geographical indication can protect the connection between a product and its geographical origin, but it does not necessarily address every form of appropriation of the cultural expression embodied in that product. The Bombay High Court’s judgement in the Prada litigation illustrates this gap. The existence of statutory remedies for proprietors for Geographical Indicators does not mean that every form of cultural appropriation can be neatly accommodated within conventional IP rights.
The limitation is therefore structural. IP law is better equipped to prevent an outsider from securing an illegitimate monopoly than to recognise the collective interests of the community whose knowledge contributed to the underlying innovation. Disclosure establishes provenance, but provenance alone does not establish consent, ownership or a right to share in the resulting value. The question, therefore, is no longer simply whether TK can be made visible to the patent system but whether the legal system is prepared to attach meaningful rights and responsibilities to that visibility.
VII. Conclusion
The WIPO Treaty moves international patent law towards greater transparency about the origins of genetic resources and associated TK. But transparency cannot, by itself, determine who is entitled to benefit from that knowledge. Whether it be turmeric and neem or Kolhapuri chappals, the real difficulty lies in acknowledging the role of the collective. Thus, any protection must transcend disclosure and focus on participation, consent and benefit-sharing of the communities.
Madhuram Lakhotia is a law student at Jindal Global Law School, Sonipat.
