75 Am. U. L. Rev. 815 (2026).

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.

* Junior Staffer, American University Law Review, Volume 75; J.D. Candidate, May 2027, American University Washington College of Law; B.S., Criminology and Psychology, 2021, Florida State University. I am grateful to my Editor, Alicia Ross, and Faculty Advisor, Professor Charles Duan, whose thoughtful guidance and feedback strengthened this piece at every stage. I’d also like to thank the entire American University Law Review staff for all their hard work. At the heart of this piece lies my gratitude to my parents, Aurelia Mina Dinoso and Joel Dinoso, who not only sacrificed so much in coming from the Philippines but also devoted themselves to immersing my sister and me in our culture. Finally, to my husband and best friend, Kelvin Shen, thank you for your unwavering support and endless patience—your support makes every challenge feel possible.