Imagine not being able to label your lungis “lungi” because someone had registered the word. That is roughly the fear behind the cultural appropriation objections to trademark filings — and while the instinct is sound, the law it would require does not yet exist.
The controversies
Recent years produced a series of unusual registrations, from personal names to ordinary English phrases that are prima facie non-distinctive.
The one that crystallised the debate: Kim Kardashian West applied to register “Kimono” for a shapewear line. The application was withdrawn following backlash from users accusing her of cultural appropriation. It was not the first such uproar, and will not be the last.
Where do you draw the line?
Cultural appropriation, at its core, concerns the taking of an ethnic group’s cultural assets. Communities have raised it for decades.
Where culture, religion and ethnicity are involved, it matters to establish clear boundaries of what falls within scope — these movements are fuelled by genuinely volatile sentiments, and the absence of unambiguous IP policy adds to the confusion.
Some countries do legislate here. India has provisions warranting absolute refusal of a mark likely to hurt the religious susceptibilities of any class or section of citizens — a bar that operates regardless of distinctiveness. That is meaningful, but narrow: it addresses religious offence, not cultural ownership.
Discussions on protecting traditional knowledge and traditional cultural expressions are underway at international level, but may take years before countries put them into practice.
The questions nobody has answered
The first difficulty is defining a cultural asset. How do we decide whether a word or phrase represents an ethnic group’s culture? Who has the authority to decide what is part of a culture and what is not? Can a group exert monopoly over its language, custom, clothing and accessories — and is that practical in a post-globalisation era?
If those were answered, a second problem follows: who owns the mark? Could the Swahili phrase “Hakuna Matata” be owned by anyone at all?
What a registration actually does
Much of the “Hakuna Matata” outrage rested on a misunderstanding worth correcting. Disney does not own the phrase. It holds a registration giving it rights to use the phrase to brand its merchandise in Class 25 — clothing, T-shirts, tops.
That distinction is the most useful thing in this debate. A trademark registration is not ownership of a word. It confers the right to use the word as a badge of origin for particular goods or services, and to stop others using it in ways that confuse consumers about those goods. It does not stop anyone speaking the phrase, writing it, singing it, or using it descriptively. Swahili speakers were never at risk of losing their idiom.
The uncomfortable symmetry
Cultural appropriation is a multi-directional practice. In a world that is largely a melting pot, individuals and entities freely adopt parts of a culture they relate to and express it as they understand it.
And a trademark’s function is to associate goods or services with their origin. “Hakuna Matata” is globally associated with The Lion King, and on that basis it meets the criteria. Registering it for merchandise was a commercial decision with commercial consequences. Monetising through monopoly is how the trademark system was designed to work — which makes Disney’s registration no different in essence from any other phrase registered for merchandise.
None of which is a complete answer to the objection. There is a real asymmetry between a global studio registering a phrase from a language it did not create and the community that speaks it, even if the legal effect is narrower than critics assume. But the objection is to the distribution of commercial benefit, which is a different problem from the one trademark law is built to solve — and it will not be solved until the questions above have answers.
For now, we rely on examiners and tribunals to decide whether a mark should be allowed, including whether it operates as a vehicle for appropriation.
The takeaways
- A registration is not ownership of a word — it covers use as a badge of origin for specific goods.
- India refuses marks hurting religious susceptibilities — but that is narrower than cultural ownership.
- Defining a cultural asset and its owner remains unresolved.
- Traditional cultural expressions are under international discussion, but years from implementation.
Frequently asked questions
Does Disney own the phrase “Hakuna Matata”? No — it holds a trademark registration covering use of the phrase to brand merchandise in Class 25. Anyone remains free to use the phrase in ordinary speech.
Can a trademark be refused for cultural or religious offence in India? Yes — marks likely to hurt the religious susceptibilities of any class or section of citizens face an absolute bar on registration.
Why was the “Kimono” application withdrawn? Following public backlash accusing the applicant of cultural appropriation, rather than through any legal determination.
Is there IP protection for traditional cultural expressions? Not comprehensively — international discussions on protecting traditional knowledge and cultural expressions continue, but implementation remains some way off.
Useful official resources
- The Trade Marks Act, 1999
- WIPO — Traditional Knowledge