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Abstract

For centuries, the ancestral tattooing practice of batok has served not as mere ornamentation but as a visual archive of Indigenous Filipinos’ history and identity. In 2021, a digital creator invited the public to learn batok online for merely fifteen dollars. Soon after, many discovered that the renown instructor, Apo Whang-Od, may not have agreed to take part. The resulting discourse exposed a broader issue: Indigenous customs and creations become increasingly vulnerable to misappropriation and improper commodification as they enter global markets and multimedia platforms. Though this event occurred abroad, it highlights how U.S. law is poorly designed to protect similar Indigenous works and underscores the need for a responsive legal framework. Western intellectual property laws are premised on sole creators and distinct ownership—assumptions fundamentally misaligned with practices like batok that are collectively owned, culturally delimited, and iteratively refined over generations.

This Comment argues that batok meets the statutory requirements and judicial factors governing trade secrecy. It first situates batok within the context of Indigenous Filipino history, explaining how various actors, protocols, and rituals have shaped the tradition. Next, it posits that foundational theories underlying U.S. intellectual property law allow for the legal protection of Indigenous customs like batok. Specifically, the custom’s classification as traditional knowledge would provide doctrinal grounding for the protection of batok under U.S. trade secret law. This Comment then explores this solution in practice by referencing international frameworks as potential models and domestic legislation to demonstrate its feasibility. Finally, the piece concludes that the ceremonial aspects and symbolic grammars of batok demand greater protection, which is possible when leveraging existing legal tools.

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