The Dangers of Culturally Sensitive Intellectual Property

October 23, 2019

One might think that New Zealand is a land of cultural sensitivity and respect, but the recent case of the country’s national airline, Air New Zealand, seeking to trademark an image containing the Maori words for hello, “kia ora” (the name of their in-flight magazine), might make some think twice.  After all, would it be reasonable to trademark the word “hello”? The Maori Council described the move as “hare-brained” and “an insult to New Zealanders”. 

The truth is that cultural appropriation through trademarking is nothing new. In the run-up to the 2018 Australia Commonwealth Games, organisers applied to have the local indigenous word for koala, “Borobi”, trademarked as the name of the Games’ mascot.  The application was successful, but not without controversy.

Perhaps one of the most famous examples of a large company seeking to trademark phrases from other cultures is that of Disney, which ahead of the release of its blockbuster animation film, The Lion King, back in 1994, trademarked the phrase “Hakuna Matata”, meaning “no trouble” in Swahili.  “Hakuna Matata” was the name of one of the main songs in the movie, written by Sir Elton John and Sir Tim Rice. Since that time, this has become something of a headache for Disney; the company has been accused of “colonialism and robbery”. It was asked to drop the mark after nearly 200,000 signed a petition stating “Disney robs Swahili of “Hakuna Matata””.

Only this year, Kim Kardashian was forced to backtrack on plans to name her new fashion line, “Kimono” after accusations of cultural appropriation relating to the Japanese garment worn for generations.  All of this begs the question, what is the line between freedom of creativity and cultural insensitivity? Furthermore, can companies trademark the icons or phrases of a particular culture, and if so, should they?  

Trademark law relating to cultural expressions and knowledge

When it comes to protecting cultural expressions or knowledge, there is no blanket set of legal provisions relating to the legal protection of cultural heritage.  According to The World Intellectual Property Organisation (WIPO), traditional cultural expressions (TCEs) may include “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or other artistic or cultural expressions”.  These are afforded protection in several ways.  

Depending on the nature of the TCE and the geography, protection may be provided in the form of copyright and related rights, geographical indications, designations of origin, and trademarks.  WIPO also states trademarks can and have been used to protect indigenous arts.  

WIPO provides an excellent resource that highlights the laws, treaties, and regulations covering the protection of traditional knowledge (TK), traditional cultural expressions (TCEs), and genetic resources (GRs).  A UK example provided by the database is the Copyright, Designs and Patents Act 1988 (Chapter 48) which provides specific rules regarding the copy-writing and patenting of folklore and folk songs.  And in New Zealand, the Trademarks Act 2002, sets out ‘absolute grounds for not registering a trademark’ including “the use or registration of which would, in the opinion of the Commissioner, be likely to offend a significant section of the community, including Māori.”

In the context of EU trademark law, the European Union Intellectual Property Office (EUIPO) states in its “Absolute Grounds for Refusal / Trademarks in conflict with public order and acceptable principles of morality”, that applications against ‘public policy’ and the ‘accepted principles of morality’ may be refused.  However, for cultural expression or knowledge to be considered against these criteria/values the benchmark is set high; the application would need to be offensive and against the norms of society and values of the European political and social order.  

Should companies register culturally sensitive trademarks?

In the case of Kim Kardashian’s proposed use of the word ‘Kimono’, the market, in the form of a social media backlash, ultimately decided for her.

Cultural appropriation will always be controversial, with some arguing that culture flows between peoples throughout time; therefore, it is impossible to say with clarity a particular symbol, custom, saying, or design belongs to one people:  David Frum commented in The Atlantic:

“Customs we may think of as immemorially inherent in one culture very often originated in that culture’s own history of empire and domination. The Han Chinese learned to drink tea for pleasure from peoples to their south. The green flag of Islam was adapted from the pre-Islamic religions of Iran. The great west African kingdom of Benin acquired the metal for some of its famous bronze artworks by selling thousands of people as slaves to Portuguese traders”.

While certain phrases, symbols, and other culturally sensitive components may evoke powerful emotions which lend themselves increased sales, consumers are becoming more attuned to the ethics and morality of businesses with which they associate.  A new generation of shoppers is demanding companies play a role in being effective custodians of the environment, looking after their staff, and protecting the interests of communities. Ultimately, the issue is one of respect; for other cultures, people, and the planet. 

Given the widespread public awareness of cultural appropriation and of how indigenous people were/are ill-treated throughout history, for example, the Amazonian tribes whose homes are being decimated, or the native tribes of Alaska and Siberia who are now being forced to leave their homes due to melting permafrost, business owners should think carefully about being seen to take advantage of cultural expressions and knowledge.  If in doubt, leave it out until you obtain legal advice.