In the recent times we have seen bizarre trademark registrations from names like ‘Blue Ivy Carter’ to English phrases that are prima facie non-distinctive and could go out of style’ (Taylor Swift, we’re looking at you). Imagine not being able to label your lungis, as ‘lungi’ because a juggernaut has registered a trademark for the word? Sounds ridiculous, doesn’t it? Kim Kardashian West attempted to trademark the word, ‘kimono’ for her new line of shapewear. The application was withdrawn following backlash from netizens accusing Kim for cultural appropriation. This is not the first time the global community has created an uproar about a trademark being cultural appropriation of a community.

Cultural appropriation – where to draw a line?

Let’s talk about cultural appropriation a little before jumping into the laws. Cultural appropriation in its crux is of an ethnic group’s cultural assets. For many decades, there has been a considerable amount of haranguing on this topic by communities. When it comes to issues relating to culture, religion and ethnicity, it is important to establish clear cut boundaries of what falls within the scope of the material as such ethnocentric movements are fueled by volatile sentiments. The want of unambiguous IP policies and laws to guide our reactions and actions in such scenarios adds to the chaos. Meanwhile, some countries like India provisions that warrant absolute refusal of a trademark that may offend the sentiments of communities. However, this is simply not enough, and we need more. Talks of the possibility and the mechanism of protecting traditional knowledge and traditional cultural expressions are underway at an international level but that may take years before it is practiced by countries.

The first issue we will face in formulating policies in this matter is defining what a ‘cultural asset’ is and identifying cultural assets. How do we decide whether or not a word or phrase can be considered a representation of an ethnic group’s culture? Who has the comprehensive knowledge and authority to decide what is part of one’s culture and what isn’t? Can a group exert monopoly over its language, custom, clothing and accessories? Is this practical in the post-globalization era? And by far-fetched hope, if we do answer this, the second issue would be deciding the ownership of the impugned trademark. Who owns the word/phrase? For example, could the Swahili phrase, ‘Hakuna Matata’ be owned by anyone? What most of the ‘activists’ have overlooked is that Disney does not own the phrase, it only has rights to use the phrase to brand its merchandise under class 25.

A Long way to Go!

We need to understand that cultural appropriation is a multi-directional practice and process. Now, when most of the world is a melting pot of cultures in all their glory, individuals and entities freely choose parts of a culture they relate to or appreciate and express it as they understand it.

We must realize that a function of a trademark is to associate one goods/services with its origin. ‘Hakuna matata’ is globally associated with the famous Disney movie, ‘The Lion King’ and fulfills the criteria to be a trademark of the entity. Obtaining a trademark registration for the phrase for merchandise by Disney was a smart business decision with bread and butter consequences. Disney has stuck its trademark registration of the Swahili phrase, ‘Hakuna Matata’ under class 25 for goods like T-shirts, tops, etc. Monetizing by monopoly is how the trademark and by extension the IP regime was built to function. Keeping this in mind, Disney’s ‘Hakuna Matata’ trademark is no different in essence from Taylor Swift’s ‘This sick beat’ trademark. So, the question of sanctioned cultural appropriation will not arise until we have answered the questions lingering herein above. For now, we rely on the Examiners and Tribunals to decide whether any trademark can be allowed or not or even if it is a tool for cultural appropriation.

We will be back with another post on this topic so until then share your thoughts on cultural appropriation and IP rights in the comments below with #askselvams and ‘Party like its 1989’!

Summary