Tuesday’s first session was a Workshop on Indigenous Rights Reconciled with Trademark Rights: Boutique Interests in a Macro Market hosted by Moderator Marion Heathcote (Davies Collison Cave) featuring speakers Florence T. Fenton (Munro Leys), Barbara Sullivan (Henry Hughes), and David Haigh (Brand Finance Plc).

Moderator Marion Heathcote began by providing some modern historical background on indigenous societies, noting that there are today roughly 350 million indigenous peoples accounting for nearly 5,000 indigenous languages in 70 countries. Their culture is often passed on by the oral tradition, which makes it easy for outsiders to ignore, violate, or under appreciate, pitting them on a “collision course” with western IP values as stated by Maui Solomon.

The backdrop: Ms. Heathcote provided a hypothetical case study to the audience where the revered indigenous coconut plant of a small island was discovered and exploited by outsiders. This island, typical to that of Fiji, was one of an oral tradition. Moreover, its indigenous coconut plant held a unique position in the culture as it every part of it was used by the islanders for some purpose, and it held special nutritional and medicinal values. The hypothetical island was discovered by western missionaries. Highlighting the contrast between the two cultures, the panelists noted that in the case of early New Zealanders, they natives were surprised that the westerners were freely giving away copies of their bibles – a text which held the key truths and moral code for them, in contrast to the natives who vested such highly cherished concepts in a small group of elders who passed this on orally to future generations.

The outside exploitation: Once the outsiders discovered the unique properties of this coconut, they soon purchased the tribal lands and patented the pharmaceutical compound derived from it. The panel noted that this was like the case of the Hoodia cactus (which had been used for centuries by the San Bushmen of the Kalahari) which was patented by a pharma company for its appetite-suppressant capacity. Although in the hypo, the outsiders negotiated and paid for the land, the panel noted this was a classic example of “talking past each other” in that the natives did not understand that they were losing rights in their cherished coconut in exchange for fast money which brought problems of its own in e.g., alcoholism. When the elders suggested the natives return to the sacred lands, they were faced with the reality that they no longer had rights of access to their homeland.

Inappropriate Use?: Continuing on with the hypo, the coconut was so wildly popular in western culture, that sports teams of western employees on the island prompted professional sports teams to adopt a team name based on the coconut name. (Take for example, the Atlanta Braves, Washington Redskins, or former Miami Redskins). A modern example given was that of pop artist Robbie Williams who found his Maori tattoo caused some controversy as traditionally such tattoos carry significant cultural meaning. All this underscored the panel’s point that often uses of culturally significant “marks” may be inappropriate where uses by outsiders are not in compliance with the social code behind the culture; then again they may be simply look-alikes, e.g., in the case of “meaningless squiggle” tattoos vs. “actual [Maori] designs”. (Though the panel clarified that this may well often be an ethical concern rather than a strictly legal one).

Solution?: Consent: The panelists remarked that often indigenous cultures are willing to share their culture with outsides so long as certain cultural norms / terms of use are respected (i.e., corporate citizenship in line with the values of the indigenous peoples) and (undetermined) royalties paid. One commentator from the audience noted that often attempts to contact indigenous peoples presents quite significant difficulties in and of itself (e.g., as in the case of the Hoodia cactus).

Guidance?: Ultimately, when, how, and from whom to obtain consent will present obstacles to those interested in using indigenous concepts as trademarks. In addition, it will not always be clear when use as a mark will cross the threshold of acceptable vs. offensive use (which itself might possibly be outside the scope of strictly legal considerations). Guidance may however be found in social norms, best practices, publicity (or perhaps more pointedly, the desire for lack of negative publicity), corporate responsibility, guidance from working groups and draft model legislation may guide those seeking to use traditional knowledge and expressions of culture.