Monday, September 21, 2020

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 Abstract

Excerpted From: Richard Awopetu, In Defense of Culture: Protecting Traditional Cultural Expressions in Intellectual Property, 69 Emory Law Journal 745 (2020) (Student Comment) (295 Footnotes) (Full Document)

RichardAwopetuIn early 2018, a Chicago-based restaurant chain called Aloha Poke Co. sent cease and desist letters to several small businesses with names containing some variation of “Aloha Poke,” for which the chain owned a trademark registration. Native Hawaiians ran many of the businesses that received the letters. Aloha Poke Co. was not owned by Native Hawaiians. The letters created an uproar because of the association that “Aloha Poke” has with traditional Hawaiian heritage. A Hawaiian activist posted a viral video in which she spoke about how important the idea of Aloha was for Hawaiian culture, noting that it was being “completely commercialized and denigrated.” The Office of Hawaiian Affairs, a Hawai'i state agency, said it was “appalled by... attempts to assert control over Olelo Hawai'i,” the traditional language of Native Hawaiians, and that it was “reaching out to key stakeholders to discuss possible solutions.”

Similarly, pressure has been building on the Walt Disney Company to abandon its trademarks on the phrase “Hakuna Matata” made famous in the blockbuster Lion King franchise. An online petition with over 138,000 signatures as of January 2018 condemned the registration as “predicated purely on greed and [as] an insult not only [to] the spirit of the Swahili people but also Africa as a whole.”

The perceived misappropriation of “Aloha” and “Hakuna Matata” has focused public attention on the issue of whether federal trademark registrations should be granted for marks that are associated with a traditional heritage and, if so, to whom such registrations should be granted. The misappropriation of traditional cultural expressions (TCEs) has a long history. However, trademark law in the United States provides avenues for protecting TCEs [traditional cultural expressions]. Specifically, an interpretation of Section 2(a) of the Lanham Act recognizing communities' special connection to their TCEs [traditional cultural expressions] in the minds of the American consuming public should prevent nonindigenous entities from obtaining registrations for marks that take advantage of these traditional cultural expressions.

Part I of this Comment discusses international recognition of the importance of TCE protection, including efforts being made to create an international instrument for such protection.

Part II explores approaches to protecting TCEs [traditional cultural expressions] outside of the United States.

Part III argues that current U.S. trademark law, as well as copyright law, should be interpreted to recognize communities' existing rights to defensive protection--intellectual properly protection that would prevent others from controlling use of a TCE-based mark. Properly protecting TCEs [traditional cultural expressions] rests on enforcing those rights to defensive protection to the fullest extent.

Part IV argues that the federal trademark registration system facilitates rampant abuse of communities' right to defensive protection of their TCEs [traditional cultural expressions]. Part V argues that an adaptation of the collective marks regime in U.S. trademark law is required to enhance communities' defensive protection of their TCEs [traditional cultural expressions] and allow these communities to profit from use of their TCEs [traditional cultural expressions] in commerce. This Comment concludes that representatives of local communities are eligible for registration of collective marks for TCEs [traditional cultural expressions] and current trademark registrations of TCEs [traditional cultural expressions] are eligible for cancellation.

[...]

Local communities and indigenous people in the United States have an implicit, existing right to defensive protection of their traditional cultural expressions under Section 2(a) of the Lanham Act. The right to defensive protection means that even if the communities cannot obtain trademark registrations for these traditional cultural expressions, nonindigenous entities should not be able to obtain these registrations either. Therefore, grants of trademark registrations to outsiders is in error and such marks should be canceled. A new category of collective and certification marks that are specifically targeted towards allowing positive protection of communities' TCEs [traditional cultural expressions] should be adopted. This new category would recognize communities as collectives, and representatives of these communities would own certification marks in their TCEs [traditional cultural expressions]. This adaptation of the current certification and collective marks regime would allow communities to more easily obtain the trademark benefits of their traditional cultural expressions, while at the same time solidifying the defensive protection that they should already enjoy.


 Executive Marketing Editor, Emory Law Journal, Volume 69; Emory University School of Law, J.D., 2020; The University of North Carolina at Chapel Hill, B.A., 2014.


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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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