A branding perspective on WAI 262

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Introduction

On July 2 2011 the Waitangi Tribunal released, after 20 years, its report on the WAI 262 claim (for further details please see “WAI 262: end of a long road for indigenous rights?“). The report attempts to reconcile Maori IP rights with the predominantly European-influenced IP system in New Zealand. As a result, the tribunal makes several recommendations for recognising Maori IP rights in matauranga Maori (Maori knowledge). These recommendations are divided into sections that comment specifically on taonga (matauranga Maori-inspired) works, intellectual property, genetic and biological resources of taonga species. This update examines the recommendations that focus on the use of taonga works, because these recommendations propose changes to New Zealand’s trademark legislation.

Taonga works

The report makes a distinction between matauranga Maori, taonga works and taonga-derived works:

  • Matauranga Maori is loosely described as “Maori knowledge”.
  • Taonga works are works that are an expression of matauranga Maori and that invoke ancestral connections.
  • Taonga-derived works are works that derive their inspiration from matauranga Maori, but do not have an ancestral connection.

Matauranga Maori, taonga works and taonga-derived works include weaving, music, waiata (song), the ritual haka dance and the Maori language itself..

Claimant’s arguments

The claimants argued that the crown has an obligation to protect, but did not protect:

  • taonga works, taonga-derived works and matauranga Maori from misuse and misappropriation; and
  • taonga works or the kaitiaki (guardian) relationship between Maori and taonga works.

The claimants sought control and full authority over matauranga Maori.

Tribunal decision

The tribunal did not grant full authority or control over matauranga Maori. Instead, the tribunal recommended that the crown introduce a regime in which:

  • anyone can raise a general objection to derogatory or offensive use of taonga works, taonga-derived works and matauranga Maori; and
  • kaitiaki can raise an objection to any commercial use of a taonga work or matauranga Maori until consultation with and, if necessary, consent from the kaitiaki.

New commission

The report recommends that the Trademark Advisory Committee (established under the Trademarks Act 2002) be replaced by a new commission with responsibility to:

  • hear objections on whether use of a taonga work, taonga-derived work or matauranga Maori is offensive or derogatory;
  • hear kaitiaki objections that a taonga work is being used commercially without consultation or consent;
  • make decisions on whether a work is a taonga work;
  • identify kaitiaki;
  • keep a register of taonga works and kaitiaki; and
  • develop and produce guidelines and best practices for the use, care, protection and custody of taonga works.

One of the major proposed changes is that the new commission’s decisions would be binding. Under the current regime, the Trademark Advisory Committee’s recommendations are not binding.

Existing trademark rights

The report states that it will be difficult to remove retrospectively any existing trademark rights, and suggests that these should be removed or stopped only if they are considered derogatory or offensive.

Future directions

These recommendations are non-binding. The government will consider which aspects of the report to adopt, and further amending legislation can be expected.

For further information on this topic please contact Lynell Tuffery at A J Park by telephone (+64 4 473 8278), fax (+64 4 472 3358) or email (lynell.tuffery@ajpark.com).

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