Indigenous Peoples and Trade Marks

Background

Indigenous People are the living descendants of the first occupants of a territory.

It is estimated that there are more than 350 million Indigenous Peoples of the world, representing more than 5,000 different languages and cultures across more than 70 countries.

Over the past 20-30 years many Indigenous Cultures have experienced a renaissance – people realise what has been lost and want to protect what they have.

Modern communciations and travel means that Indigenous Cultures are exposed to global audiences.

In a world where globalisation produces “sameness”, some look to the past, and to Indigenous Cultures, for expressions of distinctiveness - many trade mark owners wish to use words and symbols of Indigenous Cultures to promote their products and services.

Sydney AIPO/INTA Conference

The issues which arise when traditional cultural expressions of Indigenous Peoples are used as trade marks were discussed at a conference held in Sydney recently. The conference was organised jointly by the International Trade Mark Association (INTA) and the Australian Intellectual Property Office. In particular, the following questions were posed:

What are indigenous peoples seeking to protect?
What are the problems?
How have trade mark laws helped?
Where do intellectual property laws fall short?
Are regional/international arrangements helpful?

Our Barbara Sullivan chaired the panel discussion at the Sydney conference, and will participate in a workshop on the subject to be held on Tuesday May 20th at the 2008 INTA Annual Meeting in Berlin.

Recently Barbara was interviewed about the Sydney panel discussion for Radio New Zealand’s “Te Ahi Kaa” programme – a national, bilingual, weekly radio programme which discusses Maori issues.

Maori Advisory Committee

Following a 1990 review of New Zealand’s intellectual property legislation by the Ministry of Commerce, concerns were raised that the Trade Marks Act 1953 (which was in force at the time) did not sufficiently protect Maori cultural and intellectual property. Some of these concerns have been addressed in the current legislation.

The Trade Marks Act 2002 (“the Act”) requires the Commissioner to appoint a Maori Advisory Committee, comprising persons who have knowledge of te ao Maori (Maori world view) and tikanga Maori (Maori protocol and culture). The function of the Advisory Committee is:

“to advise the Commissioner whether the proposed use or registration of a trade mark that is, or appears to be, derivative of a Maori sign, including text and imagery, is, or is likely to be, offensive to Maori.” (section 178)

Recognition of Maori as the Indigenous People of New Zealand is found in the following provision of the Act:

Section 17(1)(c):

“(1) The Commissioner must not register as a trade mark or part of a trade mark any matter—
…

(c) the use or registration of which would, in the opinion of the Commissioner, be likely to offend a significant section of the community, including Maori.”

The rationale behind the establishment of the Maori Advisory Committee is to “provide assurance that the decisions the Commissioner is required to make in respect of the registration of trade marks containing Maori text or imagery are made appropriately.”

All applications received by the Intellectual Property Office (“IPONZ”) are assessed to determine whether the mark that is the subject of the application is, or appears to be, a word, logo, or other sign that is, or includes, a Maori sign (“derivative of a Maori sign”). If it does, the application will be referred to the Committee who will determine whether the mark causes offence or is likely to cause offence to Maori, and advise the Commissioner accordingly.

If the Committee considers that the proposed use of the sign is inappropriate, but not likely to be offesnsive to Maori, it will not recommend that an objection be raised under section 18(1)(c). The Committee will consider only signs for which trade mark registrations have been sought; it has no mandate to consider signs or trade marks which people wish to use but not register. To assist the public and the Commissioner, the Committee has published a series of guidelines relating to use of Maori signs.

We refer you to the following IPONZ documents for a more detailed explanation of the function of the Maori Advisory Committee, and guidelines it has issued and its members.