The foundation for the doco is the protection of cultural and intangible property where the origin is outside of current copyright and patent protection.…
Imagine for a moment that your company develops a product, let’s say a fashion label, to which you apply your own name. Initially success is small, but a major showing gives an international breakthrough.
Suddenly, you have a problem. Your “name” has been registered in another country as a trademark. The registration is broad enough to include anything that you might produce under your name or fashion label.
Can’t happen?
Arrowtown fashion designer Tamsin Cooper has hit back at industry giant Trelise Cooper who is opposing the registration of her brand name saying it is too close to her own.
Tamsin Cooper has lodged a counter-statement with the Intellectual Property Office in response to Trelise Cooper's opposition to the registration of her brand.
Tamsin Cooper told the Otago Daily Times the arguments contained in her counter-statement were three-fold: First, the two brands were not confusing, and did not attempt to deceive the public.
Secondly, the name Tamsin Cooper was her own; and thirdly, her brand was already two years old and she should be able to continue using it.
Trelise Cooper said the name was too close to her own brand, launched eight years ago and now internationally recognised, and would cause confusion in the competitive fashion industry.
Both these ladies are using their own, birth, names. It would seem fair to say that there had been no intended trading off by one against the other. But that should not deny a person from defending their trade name, it should not allow the prospect of trading off either.
But that is only the beginning!
Ok, how about a musician?
Companies right around the world are on the look out for something to help brand their product in the global marketplace. In order to create a point of difference, companies are turning their eyes to N.Z .Things we take for granted, that we think belong to us even words and names, are up for grabs.
In 2002, singer Moana released her self-titled album into Europe, accompanied by the usual blaze of publicity associated with a CD release. Halfway through her tour, Moana was told that her record company was being threatened with a lawsuit by another German company. Media FX had trademarked the name Moana in Germany for around 40 products, including CDs and 'anything made of paper or cardboard.' That meant Pirate Records had breached international copyright law by releasing a CD under the name Moana into Germany.
Despite it being both her birth and stage name, the NZ artist was forced to rename her CD and all promotional materials for the German market.
This documentary looks at how a foreign company can control the use of a Maori name. It explores the extent to which intellectual property law can protect indigenous property or even what we think of as part and parcel of our nation.
Maori have challenged big companies in their tracks and forced big business to engage with those whose images, symbols and words they seek to co-opt.
This is an authored documentary narrated by Moana, as someone who has been exposed to this situation at a personal level. We start with her experience and join her on a journey to understand the international implications of current intellectual and cultural property laws. This takes her to Germany (and the man who trademarked her name), Denmark (Lego), London then to Detroit (Ford Motors), San Diego (Sony Playstation / Bottlerocket) and throughout New Zealand.
And there we have the basis for the documentary.
New Zealand is proud of its dual heritage. A visitor will see the evidence anywhere from a city church to a remote country store. It might not be obvious, it might be right out in the open. Kowhaiwhai patterns around a sign; a seat outside the door with no one sitting in it; a person removing a hat from where it was placed near food…
I must say that NZ as a nation has on occasions been less than considerate or consistent in our use of Maori images and cultural identification in the past. That is not (directly) the problem.
Imagine the uproar that might occur if I were to start marketing a brand of washing machines in the US with the brand name “George Washington” and the advertising catch “We can not lie about it”. Or how about a men’s bathing suit line with the trademark of “Running Bear”? Still happy? Or a range of digging implements named “Navahoe”? How about a laxative product named “Geronimo”? In addition to licensing the trademarks, protection is taken out over the names preventing their use on a wide range of products only vaguely related to the initial range….
Now if I were to protect those product names as both copyright and trademarks in Europe as well. The effect? No other product is allowed to show those names. More importantly, no recognition monetary or otherwise is given to the source of those names.
OK, let us change direction just a bit.
Some years back, it was with considerable pride that NZ sent to the US an arts and cultural exhibition called “Te Maori”. That exhibition received rave reviews from every city it was shown from the NY Met to San Francisco.
Some of the artifacts shown were effigies of people, REAL people, rendered in wood carvings. Some of them were weapons or tools, imbued with their own history, their own “whakapapa” (which is like a spiritual genealogy).
Some of them were religious artifacts; one in particular a spectacular and powerful carved representation of Uenuku. It might appear simply “a primitive black stick” to many, but it does actually date (by carbon dating) back some 450 years.
An adapted form of the Uenuku image appeared recently as a motif on a car seat in a vehicle manufactured by Ford. It is not out of line to compare the placing and usage of that image (where it is demeaned and insulted by being sat upon) with using the image of Michaelangelo’s statue of the Pieta as the central image on a teatowel.
To be fair here, Ford were contacted by the producers of the programme and have both apologized on air for misusing the image and have withdrawn the car-seat product from sale. It seems that they did make some effort to obtain “permission” – from a Hawaiian I believe. To be fair too, Ford are not the only “users” of Maori cultural “motifs”; others include Lego and Sony.
If you want, try and wade through this plethora of information but you can take my word for this much; there is no protection in any national or international law for cultural, religious or racial heritage.
That is (at least should be) about to change. One thing is certain, expect the Maori to be at the van of that change; expect the rest of NZ (small as we might be) to be close behind. The first steps have been taken by the French, with state enforced protection for names such as “champagne” and “Bordeaux” and in more recent times moves to protect “brie” and “camembert”. That approach is the high-cost solution. They also have the advantage that French law may have the effect of influencing EU action and law – a far wider scope than NZ and any other small country could hope to achieve.
There has to be change, in both the definition and operation of trademarks and the relevant laws, to protect all cultural property. The mere fact that present law has (mistakenly or by default) made such property generic is a major failing.
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