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New practice guidelines and resources enable appropriate use of Māori elements as part of trade marks
With the enactment of the Trade Marks Act 2002, the Māori Trade Marks Advisory Committee was established to address Māori concerns relating to the registration of trade marks that contain a Māori sign. At the time this was a world first to incorporate cultural awareness and considerations into intellectual property (IP) laws.
The Trade Marks Act empowers the Māori Trade Marks Advisory Committee to advise the Commissioner that the use or registration of a mark which includes elements of Māori culture would be likely to offend Māori. The Commissioner, under section 17(1)(c), must not register as a trade mark any matter that would be likely to offend a significant section of the community, including Māori.
Elements of Māori culture include anything sourced and generated from te Ao Māori (Māori world view). These include words or images that are, make reference to or include:
- Kupu (Māori words), whakataukī (proverbs), expressions of language, dialect, whakapapa (genealogical information), or naming conventions;
- Māori names, including Māori whānau (family), hapū (subtribe), iwi (tribe) or marae names (traditional Māori gathering place);
- Māori people, places, characters, protocols;
- Māori history, cultural stories, historical accounts, songs, dance, cultural expressions that may or may not be in the public domain;
- Toi Māori – art, carving, moko and tā moko (Māori tattooing), raranga (weaving), clothing and adornments, visual arts, games, both traditional and modern cultural expressions
- Taonga Māori – Te Reo Māori (language), landmarks, whakapapa, photographs, taonga tuku iho (heirlooms), tribal landmarks, artefacts in collections, flora and fauna (native trees, birds, taonga (treasured) species)
- Specific whānau, hapū or iwi tribal land, waterways, mountains, social systems and structures
- Mātauranga (knowledge, wisdom).
The members of the Māori Trade Marks Advisory Committee have a deep understanding of mātauranga (knowledge) and tikanga Māori (correct procedure, custom). The members of the Committee hold extensive expertise across a wide range of areas, including culture, art, and business.
Since 2002, there has been a growing number of trade mark applications including elements of Māori culture being filed. IPONZ reports that since its establishment, the Māori Trade Marks Advisory Committee has seen an average 10% annual increase in the number of referred cases. Alongside this, it is apparent that there has been a growing understanding of the appropriate use of Māori cultural elements in trade marks with the number of trade mark applications found offensive by the Māori Trade Marks Advisory Committee decreasing from its highest point of 8% in 2018, to 4% over the last 3 years.
To support the appropriate use of Māori cultural elements in trade marks, IPONZ and the Māori Trade Marks Advisory Committee have developed new guidelines. The new guidelines explain specific Māori concepts including te Ao Māori and Mātauranga, discuss why using certain Māori elements in combination with some products or services may be considered offensive and suggests actions to be taken to ensure appropriate usage and to avoid offense.
Trade mark practice guideline 16: Māori advisory committee and Māori trade marks
The Guidelines recognise the tension between the monopoly rights granted to the registered owner of the trade mark which is at odds with the Māori concepts of collective ownership and benefit of mātauranga.
Many general concepts guide the Committee in providing its advice to the Commissioner, including the recommendations contained in Ko Aotearoa Tēnei – the report on the Wai 262 claim by the Waitangi Tribunal.
If a trade mark containing or derived from Māori elements is not used in a manner that fits with Māori cultural practices or Māori considerations for commercial use, the use may be perceived as so disrespectful and insensitive that it is likely to offend Māori.
It is to be noted that there are words in other languages that are also Māori words. When considering whether the use or registration of a trade mark is likely to offend Māori, any word in the mark will be interpreted from a Māori perspective. This means that if there is a foreign word in the mark that also has a meaning in Māori, the assessment about offensiveness to Māori will be based on the meaning of the Māori word.
If an objection is raised under section 17(1)(c) that the use and registration of the trade mark is likely to offend Māori, it may be possible to overcome the objection through consultation with Māori, to obtain permission being granted or confirmation that there would be no offense. In some cases, it may be possible to overcome the objection by amending the specification of goods and services to remove the items that would cause offense.
To assist applicants as they navigate these important issues, IPONZ has developed an Aratohu Mātauranga checklist. Completing this checklist is optional and is not required as part of a trade mark application.
Aratohu Mātauranga checklist
The role of the of the Māori Trade Marks Advisory Committee is an important cultural safeguard. A key message from the Committee and from the IPONZ guidelines is the importance of consultation and dialogue with Māori prior to adopting a trade mark which incorporates elements of Māori culture. Utilising the resources available here on the IPONZ website should allow brand owners to avoid causing offence when developing a new trade mark.
Elena Szentivanyi - April 2024
