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

PROTECTINGNATIVE HAWAIIAN

CULTURAL ARTS & CRAFTS:

THE LEGAL FRAMEWORK

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

EXAMPLE OF USE OF CULTURAL TRADEMARK:

INDIAN ARTS & CRAFTS

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

IACA TRADEMARK + TRIBAL MARK

IACA VENDORS ASSOCIATION TRADEMARK

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”

RESULT: REVITALIZED INDIAN ARTS & CRAFTS (TODAY A $1B

MARKET)

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

EXAMPLE OF USE OF CULTURAL TRADEMARK:

MAORI ARTS & CRAFTS

TOI IHO (MAORI MADE) TRADEMARK

“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

CAN CULTURAL TRADEMARKS

BE USED TO PROTECTNATIVE HAWAIIAN ARTS &

CRAFTS?

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

EXAMPLES OFCULTURAL TRADEMARKS THAT HAVE BEEN USED

IN HAWAII

HAWAII VISITORS BUREAU “WARRIOR”

TRADEMARK (FOR HISTORICAL PLACES)

HVCB “ISLANDS OF ALOHA” TRADEMARK (FOR TOURISM

SERVICES)

BISHOP MUSEUM “PETROGLYPH”TRADEMARK (FOR CULTURAL BOOKS)

HALE KU’AI “NATIVE HAWAIIAN MADE”

TRADEMARK (FOR ARTS & CRAFTS)

SOME ISSUES TO CONSIDER IN ADOPTING A

NATIVE HAWAIIAN CULTURAL TRADEMARK

• 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

MAHALO NUI!

For further information, contact:

Hale Ku’ai Study GroupMaile Meyer, Maile Andrade, Co-Chairs

P.O. Box 17339Honolulu, HI 96817 USA

Tel: (808) 783-2786