Hands Off My Heritage: Cultural Appropriation And Trademarks

Judith Soto,

Walt Disney has faced uproar in parts of Africa for trademarking “hakuna matata”, a Swahili phrase meaning “no worries”. It has owned the trademark since 1994; however, as we shall see, the conversation on cultural appropriation has developed significantly in the last 20-odd years.

Hakuna Matata has been used by most Kiswahili-speaking countries such as Tanzania, Kenya, Uganda, Rwanda, Burundi, Mozambique, and the Democratic Republic of the Congo. An online petition, which at the time of writing had over 187,000 signatures, argues that the Disney corporation should not be allowed to trademark something it did not invent.

Culture and trademarks have always had a rocky relationship. And corporations need to be more sensitive and aware than they have ever been when it comes to applying intellectual property (IP) to a print, shape, saying, or concept that is associated with a particular set of values, expression, and/or ethos of a group of people. Thanks to social media, it is far easier for people who believe their culture has been misappropriated to complain and vilify an organisation for doing so, leading to reputational damage to the brand. And frankly, society as a whole is simply less tolerant of corporations, especially rich American ones, profiting from the cultures of people who are in a less powerful position. 

What is cultural appropriation?

The phrase ‘cultural appropriation’ is defined by the Oxford Dictionary as “the unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society.”

However, Everyday Feminism argues that cultural appropriation runs deeper, stating it “also refers to a particular power dynamic in which members of a dominant culture take elements from a culture of people who have been systematically oppressed by that dominant group.”

Cultural appropriation is rife with controversy, with some arguing that power ebbs and flows, therefore it is impossible to say with clarity that a particular symbol, custom, saying, or design belongs to one people:

“Customs we may think of as immemorially inherent in one culture very often originated in that culture’s own history of empire and domination. The Han Chinese learned to drink tea for pleasure from peoples to their south. The green flag of Islam was adapted from the pre-Islamic religions of Iran. The great west African kingdom of Benin acquired the metal for some of its famous bronze artworks by selling thousands of people as slaves to Portuguese traders”.

As a general rule, in 2019 if a privileged person or organisation is profiting or receiving recognition for something they never created, they had better be prepared to defend their choices.

Cultural appropriation and trademarks

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions of UNESCO, 2005, defines "cultural expressions" as “expressions that result from the creativity of individuals, groups and societies, and which have cultural content."

The Word Intellectual Property Organisation (WIPO) defines ‘traditional cultural expressions’ (TCE) as including “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.”  The organisation states that due to the legal and policy issues that can stem from TCEs, “they receive a distinct focus in many national and regional IP laws and in WIPO’s work.”

Certain countries such as Costa Rica, Kenya, Peru, New Zealand, and Zambia have legislation in place to protect certain TCEs and traditional knowledge (TK). Dr. Marisella Ouma, writing in the WIPO Magazine states that national and regional laws protecting traditional knowledge have limited impact as the legal effect only extends to the country or countries the legislation covers. To counteract this, some nations have entered into conventions to protect TK; one example is the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions, adopted by 19-member states of the African Regional Intellectual Property Organization (ARIPO). However, other examples of such treaties are thin on the ground. Dr. Ouma comments that laws surrounding patents and copyright have been harmonised and made subject to international minimum standards through conventions (Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886 respectively). It is argued that TCE and TK require the same international conformity, protection and legal certainty.

Examples of indigenous people protecting their IP

The United States has seen several examples of indigenous cultures fighting corporations to protect their IP. In 2016, Navajo Nation, an indigenous population living in North America made an agreement with American multinational company, Urban Outfitters to work together and market authentic ‘Navajo’ goods. The court case occurred after the corporation illegally used the tribe’s name for a collection that included “Navajo hipster panties” and a “Navajo print flask”. The move violated Navajo Nations' IP rights (the tribe own 86 trademarks registered at the United States Patent and Trademark Office (USPTO)) but the lawsuit stated that the company was also in breach of the federal Indian Arts and Crafts Act, which makes it illegal to sell arts or crafts in a way that falsely suggests they were produced by Native Americans.

Final words

Companies will need to be even more thoughtful regarding culture going forward; Generation Z (those born after 1996) see themselves as global citizens and are the most socially conscious group yet.  Add this to the fact they and Millennials (the generation preceding Generation Z or iGen) have a deep distrust of business, and it is easy to see how quickly an ill-considered IP decision can turn into a global PR disaster.

Legal experts argue that the Disney trademark of “hakuna matata” provides the necessary protection required to ensure the catchphrase is not used on another organisation’s merchandise such as T-shirts. Ms Liz Lenjo, an intellectual property lawyer at Kikao Law in Nairobi, defended Disney’s trademark in the Financial Times, saying it “protected the company’s creative use of the phrase for the particular purpose of clothing.”   A Kenyan company, she said, could equally trademark the phrase “Good Afternoon, Sir” if it had established it as a brand, say for a chain of coffee shops.

So, is the controversy surrounding trademarks and cultural appropriation a fuss over nothing?  Or a legitimate grievance which, as our understanding of the importance of honouring and respecting the customs of other nations and cultures continues to grow, a factor which requires a legal change at the international level?  Regardless of personal opinion, commercial organisations need to tread carefully on this issue - 'hakuna matata' definitely does not apply.

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