USE OF CULTURAL TRADEMARK TO PROTECT NATIVE HAWAIIAN ARTS
Hale Ku’ai Study GroupMaile Meyer, Maile Andrade, Co-Chairs
Leighton Chong, Danielle Conway-Jones, IP Counsel
Fiscal Sponsor: Pa’i FoundationFunded with a Grant from OHA
A DISTINCT NATIVE CULTURE:
• OWN HISTORY
• DISTINCT RACE
• OWN LANGUAGE
• TRADITIONAL LANDS
• TRADITIONAL KNOWLEDGE, CUSTOMS, PRACTICES
• UNIQUE CULTURAL EXPRESSION: ARTS & CRAFTS
• SELF-GOVERNING, SOVEREIGN PEOPLE
INTERNATIONAL LAW: CONVENTION ON BIODIVERSITY: FRAMEWORK TO PROTECT WORLD’S SPECIES & CULTURES
WORLD INTELLECTUAL PROPERTY ORG. (WIPO) ADAPTING IP LAWS FOR CULTURAL IP
REGIONAL LAW:PACIFIC ISLES REGIONAL PROTOCOL: TO PROTECT CULTURAL IP IN PACIFIC BASIN
U.S. FEDERAL LAW: INDIAN ARTS & CRAFTS ACT (IACA)U.S. TRADEMARK LAW: ORIGIN, CERTIFICATIONU.S. COPYRIGHT LAW: ARTWORK, DESIGNS
STATE LAW: REGULATION OF STATE CULTURAL RESOURCES PROTECTION OF MADE-IN-STATE PRODUCTSCONSUMER (ADVERTISING) PROTECTION LAWS
ECONOMIC, OTHER: ARTS COOPERATIVES, GUILDS, HALAUS, HUISORGANIZED ACTION, BOYCOTTNEW TYPES OF LAWS FOR CULTURAL IP
WHAT IS A CULTURAL TRADEMARK?
• DISTINCT WORD(S), SLOGAN, LOGO, DESIGN OR COMBINATION
• NOT MERELY DESCRIPTIVE OR MISDESCRIPTIVE
• SUBJECT TO LEGITIMATE CONTROL OF A LEGAL ENTITY
• IS USED TO DESIGNATE CULTURAL GOODS OR SERVICES
• INDICATES / CERTIFIES ORIGIN, QUALITY, AUTHENTICITY, &/OR ENDORSEMENT OF GOODS OR SERVICES
• DISTINGUISHES FROM NON-APPROVED GOODS/SERVICES
PROBLEM:
• CULTURAL ARTS & CRAFTS ARE UNIQUE TO INDIAN TRIBES
• UNIQUENESS ATTRACTS OUTSIDE PRODUCERS AND VENDORS
• CHEAP, MASS-PRODUCED FAKES FLOOD INTO INDIAN MARKET
• ARTISANS CANNOT COMPETE WITH MASS-PRODUCED FAKES
• ARTISANS CANNOT EARN A LIVING FROM THEIR WORK
• CULTURAL ARTS BEGIN TO DIE OUT
INDIAN ARTS & CRAFTS ACT (IACA)ORIG. ACT 1937, ACT OF 1990, AMENDED 2000
• UNLAWFUL TO OFFER, DISPLAY FOR SALE, OR SELL PRODUCTS
• FALSELY SUGGESTING IT IS INDIAN MADE OR PRODUCED
• INDIAN: ANY MEMBER OF A RECOGNIZED TRIBE (U.S./STATE) OR PERSON OF INDIAN DESCENT CERTIFIED IN TRIBAL ARTS.
• VIOLATORS SUBJECT TO $250,000 FINE &/OR 5-YR PRISON TERM
• BUSINESSES SUBJECT TO $1,000,000 FINE
• INDIAN WORKS IDENTIFIED BY APPROVED TRADEMARKS
• HAS REVERSED FLOODING OF FAKES INTO INDIAN ARTS
EXAMPLES OF IACA-PROTECTED INDIAN TRADEMARKS:
“INDIAN MADE”“INDIAN PRODUCED”
“PRODUCED BY WINNEBAGO TRIBE OF GREAT PLAINS”
EXAMPLES OF NON-INDIAN TRADEMARKS:
“INDIAN-STYLE” MOCCASSINSNECKLACE IN THE “CHEROKEE STYLE”
“PRODUCED BY SILVERCLOUD, ARTIST OF SIOUX DESCENT”
LESSONS LEARNED: IACA MODEL
• DEPENDS ON RACIAL DEFINITION OF WHO MADE PRODUCT
• ARTIST MUST BE INDIAN MEMBER OF RECOGNIZED TRIBE
• SUPPORTED BY U.S. FUNDING & DOJ/FBI ENFORCEMENT
• HAS REVITALIZED THE INDIAN ARTS MARKET
• FEW CRIMINAL CONVICTIONS, BUT STRONG MONITORING
• SUCCESS IS LEADING TO BROADER MARKETS: TRIBAL MARKS
• CAN HELP NATIVE HAWAIIANS ONLY W/ U.S. RECOGNITION
“TOI IHO” CULTURAL TRADEMARK SYSTEM
• ESTABLISHED UNDER NEW ZEALAND LAW IN 2000
• MAORI ARTS BOARD PROVIDED WITH OWN STAFF & FUNDING
• MAY BE APPLIED TO WORKS BY ARTISTS OF MAORI DESCENT.
• MAY BE APPLIED TO VENDORS OF 6+ CERTIFIED ARTISTS
• MAY BE APPLIED TO JOINT WORK OF MAORI ARTISTS & OTHERS
• MAORI BOARD HAS INSISTED ON AUTHENTICITY & QUALITY
• HAS ONLY CERTIFIED MASTER ARTISTS
• PROGRAM TO BE TRANSFERRED TO MAORI ARTS BOARD CONTROL
LESSONS LEARNED: MAORI MODEL
• EMPHASIZES AUTHENTICITY AND EXCELLENCE OF WORKS
• BACKED BY MASTER ARTISTS WHO DON’T NEED TRADEMARK
• AVOIDED DIVISIVENESS OF JUDGING WORKS OF ARTISTS
• AVOIDED DIVISIVENESS OF RACE ID (MASTERS ARE MAORI)
• AVOIDED DIVISIVENESS OF CONTROL (INITIAL NZ ADMIN)
• PROVIDES ART GRANTS FOR DEVELOPING ARTISTS ($2M/YR)
• SUCCESS IS LEADING TO BROADER MARKETS: TRIBAL MARKS
THREATS TO NATIVE HAWAIIAN ARTS
• COMMODIFICATION OF CULTURAL ARTS, CRAFTS, PRODUCTS
• LOSS OF LIVELIHOOD OF NATIVE ARTISANS & PERFORMERS
• LOSS OF TRANSMISSION OF KNOWLEDGE TO YOUNGER GENS
• DILUTION THROUGH FAKES AND IMITATIONS
• MISAPPROPRIATION OF CULTURE BY NON-HAWAIIANS
• PROFITING FROM CULTURE W/O COMPENSATING HAWAIIANS
• DEGRADING INTEGRITY AND SANCTITY OF CULTURE
• RACIAL DEFINITION? = U.S. CONSTITUTIONAL PROBLEMS
• JUDGING OTHER PEOPLE’S WORKS? = DIVISIVE
• CERTIFY MASTER ARTISTS &/OR ARTS ORGS ON QUALITY ISSUE?
• DESIGN NEW TRADEMARK v. USE WELL-KNOWN TRADEMARK?
• CONTROL BY MAOLI ARTS BOARD, OR STATE BOARD INITIALLY?
• NEED, OR AVOID, STATE LEGISLATION & FUNDING?
• VISITOR BUSINESSES: CARROT = TM LICENSE, STICK = BOYCOTT?
HALE KU’AI STUDY ONNATIVE HAWAIIAN CULTURAL
TRADEMARK• HAS GRANT FUNDING FROM
OHA FOR STUDY IN IN 1ST HALF 2006
• WILL COMPARE IACA, MAORI, PACIFIC & OTHER MODELS
• WILL HOLD MEETINGS FOR INPUT OF MAOLI ARTISTS IN 4 COUNTIES
• WILL HOLD MEETING FOR INPUT OF BUSINESS, LAW, AND GOVT
• WILL HOLD CONFERENCE TO ANNOUNCE STUDY CONCLUSIONS
• WILL RECOMMEND MODEL HAWAI’I PROGRAM FOR IMPLEMENTATION