In the competitive global marketplace, New Zealand’s indigenous culture presents trade mark owners with unique branding opportunities. Maori words and imagery create a point of difference and that can promote the spiritual and natural aspects of a product.
Despite the commercial benefits, the Maori tradition must be respected. Maori custom regards certain objects and locations as holy, or tapu. If they are associated with common objects, their sacredness is removed. For example, a trade mark that associates an image of a Maori chief, which is tapu, with an ordinary item such as food, could be considered culturally offensive to the Maori community.
The Trade Marks Act of 2002 increased the protection of Maori intellectual property rights. Under the Act, the Trade Marks Commissioner must examine all trade mark applications for Maori text or devices. The Intellectual Property Office of New Zealand (“IPONZ”) has published a set of guidelines to assist the Commissioner in the identification process. In addition, the Vienna Classification System, which classifies all marks that contain imagery, has specific delineations for Maori objects.
Trade marks that use Maori symbols are referred to the Maori Trade Marks Advisory Committee. Its function is “to advise the Commissioner whether the proposed use or registration of a trade mark … is, or is likely to be, offensive to Maori”. Trade mark owners will be notified if their mark is to be examined by the Advisory Committee.
IPONZ aims to have the Advisory Committee’s determination passed onto the Commissioner within 15 working days. Although not binding, the Commissioner generally acts in accordance with the Advisory Committee’s recommendations when deciding if a trade mark should be prevented from proceeding to registration on the basis that it will “offend a significant section of the community, including Maori”.
Whether the Trade Marks Act goes far enough to protect Maori rights remains a matter of debate and there is no doubt that legislation and case law in this area will continue to evolve.