Historical and Legal Foundations of Indigenous Ownership
1. Affirmation by the Spanish Crown and Holy Roman Empire (1522)
In 1522, Emperor Charles V of Spain explicitly credited the Indigenous Peoples of the Americas as the original creators of chocolate. This royal recognition preceded the onset of biocolonialism, marking the last time that cacao was legally acknowledged as Indigenous Cultural and Intellectual Property (ICIP).
2. The Common Law Basis of the Chocolate Trademark
A common law trademark protects a name, symbol, or product identifier that establishes a unique origin and source. In this case, the terms CHOCOLATE, CACAO, COCOA, THEOBROMA, and CHOCOLATA originate exclusively from Indigenous Peoples.
Under Title 15, Section 1125 of the U.S. Code (Lanham Act), common law trademark rights exist automatically once a mark is used in commerce, so long as it identifies a specific source. Unlike statutory trademarks, which require federal registration, a common law trademark is protected from unauthorized use by any entity that attempts to profit from the goodwill associated with it.
Key Legal Principle: A trademark functions as a "badge of origin." Since Indigenous Peoples were the first to cultivate, trade, and innovate chocolate, they remain the sole rightful owners of its associated intellectual property.
3. Legal Precedent for Repatriation of Cultural Property
Under UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples), ICIP (Indigenous Cultural and Intellectual Property), the Nagoya Protocol, and Access & Benefit Sharing (ABS) frameworks, Indigenous Peoples have the right to control, license, and receive economic benefits from their cultural and biological heritage.