The use of indigenous Australian languages and symbols in trade marks and the complexities of the consultative process between commercial entities and the relevant indigenous group(s).

Earlier this year, I published an article on the ‘Borobi’ trade mark decision in Australia which centred on the use of indigenous Australian languages and symbols in trade marks and the complexities of the consultative process between commercial entities and the relevant indigenous group(s).

This week, it has emerged that a Belgian beer company (Brussels Beer Project) has used the name ‘Māori Tears’ as the trade mark for a limited edition pale ale which has been produced using hops from Wakatu in the upper South Island of New Zealand.

The beer, for which only 800 bottles are available and is only sold in the company’s brewery in Brussels, is marketed as being “From New Zealand to Brussels, we encapsulate those tears to capture their sacred nature!”.

It is unclear what the sacred nature of the “tears” is in reference to or what the intention was of Brussels Beer Project in adopting the trade mark. But it has drawn criticism from a number of prominent Māori in New Zealand who claim it is spiritually and culturally offensive, cultural appropriation and/or at the very least, “poor taste” (as put by New Zealand Labour MP, Tamati Coffey).

There is no indication at this stage that the company consulted with Māori representatives and community members over the adoption and use of the name despite its clear reference to the Māori people.

Like Australia, there is no official requirement in New Zealand to consult with local iwi (tribes) when adopting trade marks with Māori words or symbols. Although, there are legislative requirements in New Zealand that all trade marks sought for registration which contain Māori words or symbols must pass through a specialist Māori Advisory Committee who determine if the trade mark is, or is likely to be, offensive to Māori. If so, an objection will be raised to the registration of the trade mark.

Given the beer won’t be available for sale outside of Belgium and it is limited in stock, it seems unlikely that Brussels Beer Project will seek registration of the trade mark in New Zealand.

Nonetheless, it begs the question of why a company with no obvious affiliation to New Zealand and Māori other than the mere fact that the beer contains New Zealand hops would adopt such a trade mark, particularly if they have in fact not undertaken due diligence and consultation before it was used. The fact that its use is confined to an overseas market should not, in my view, remove a company’s obligations to be considerate of these issues.

The key point to take away from this example and the ‘Borobi’ case in Australia is not that of discouraging companies from using, celebrating and/or recognising indigenous cultures. Instead, if the intention is to use indigenous words and symbols within trade marks and branding for commercial gain, companies need to understand the ethical obligations incumbent on them to follow due process and consultation.

After all, it is as much about ensuring that companies do not cause offense and upset to the relevant indigenous communities as these communities retaining control over their culture. Any commercial gain made through the recent trend towards using indigenous material in branding will in all likelihood be lost if you get it wrong.

Although the Brussels Beer Project has not provided an official statement, the ‘Maori Tears’ beer has since been removed from their official website.