Jonah Lomu doco stoush: Experts weigh in on if All Black legend’s widow has a trademark case

Does Jonah Lomu’s widow have a case when arguing the New Zealand Film Commission-backed documentary about his life would breach the trademark she holds over his name? Experts have weighed in.

Jonah Lomu’s widow Nadene Lomu has written a cease-and-desist letter to the New Zealand Film Commission (NZFC) over a proposed documentary about the rugby superstar, who died eight years ago, claiming she has sole rights to his story.

The first global rugby superstar, Lomu died on November 18, 2015, at just 40, after a lifelong battle with a kidney ailment.

NZFC CEO Annie Murray said they had now provided advice to the documentary producers outlining Nadene Lomu’s grievance, and the project will not proceed until it has been resolved.

A producer of the documentary, Emma Slade, said they had been in conversations with the family since last year, and would not have any further comments until the discussions are complete.

In a statement to Facebook yesterday, Nadene claimed she had had these conversations, explaining the documentary was going ahead “without my knowledge and consent” which she called “wrong and illegal”.

When looking at the New Zealand Intellectual Property Office, Nadene does own the trademark under the entertainment banner, but experts argue this does not mean others can not tell the superstar’s story.

One of New Zealand’s most experienced entertainment law specialists Mick Sinclair argued that because a lot of Lomu’s story is already in the public domain, it would be extremely difficult to argue a trademark claim.

Firm AJ Park’s lawyer who specialises in copyright Ken Moon said that trademarks are usually made for goods and services, not the production of film and television.

“So I don’t think the trademarks, in relation to the film commission issue, wouldn’t normally have any relevance to that at all,” Moon said, as they were not attempting to sell goods or services under Lomu’s name.

Moon admitted Lomu’s wife claims that she has trademarked “Lomu’s name, likeness and image, including any film production and entertainment” sounds like a “considerable exaggeration”.

The only case she could make, Moon theorised, is a copyright claim. However, it is assumed much of the footage used in the documentary would be interviews and past rugby matches, which would not be owned by Nadene Lomu.

A partner at the same firm, Thomas Huthwaite, said it really depended on what Nadene wanted to prevent.

“If she wants to prevent an independent story from being told, she’s unlikely to prevent that.

“On the other hand, if she’s looking at trying to prevent the use of the name Jonah Lomu as a trademark, or in any other way that suggests authorisation, then she might have an argument for that.”

Huthwaite said, however, if the documentary were to refer to him by name, that wouldn’t fall under any breach of a trademark.

“You are really talking about rights to a story that has many moving parts, and unless they are drawing on materials owned by Nadene it’s difficult to see how that would be any ability to prevent the telling of an independent story.”

Huthwaite said the issue boiled down to the question of if they were going to simply retell his story as a global rugby superpower or are they going to use his image as some kind of endorsement.

He said that any merchandise that could be sold for the promotion of the documentary would fall squarely into Nadene’s trademark.

Yesterday, Nadene Lomu told the Herald her letter to the Film Commission was a last resort because “someone has to fight and Jonah can’t, so I must, for our whānau”.

Nadene Lomu said she had trademarked and owned the intellectual property for “all and anything to do with my deceased husband”.

Explaining her decision, Nadene Lomu told friends and family on Facebook: “As we approach eight years since our beloved Jonah devastatingly passed away leaving our side, there has been a lot that I have kept close to my heart.”

Nadene Lomu and sons Brayley and Dhyreille. Photo / Supplied

She said the trademark prevented anyone “trying to exploit and make money off Jonah and I want to protect the authenticity of his legacy for our two sons, Brayley and Dhyreille.”

“In my letters to the New Zealand Film Commission, I have stated my support for their tireless and honest work on getting the New Zealand storytelling out to the world, and I fully support all they do.

“But on this instance, where my intellectual property rights have been violated on the production of a Jonah Lomu documentary, made without my authority or consent, nor have I been contacted by anyone in regards to the possibility that there might be a Jonah Lomu documentary. I have been forced to write a ‘cease and desist’ to the New Zealand Film Commission and the producers involved from continuing down the path that breaches and infringes on my intellectual property rights.

“The letters I wrote were from myself directly to the parties as my concerns are, and have always been, the protection of Jonah’s and my children.

“In saying that, I have no idea on what the storyline or direction of this documentary is taking or where the research has come from, nor has anyone in this process paid attention to see if there are any legal or copyright infringements.”

The Film Commission’s Murray said filmmakers were put through a robust checklist before funding for a project is given the go-ahead.

Funding information confirmed the NZFC board approved conditional offers to “one new feature film and additional equity to one feature film including a documentary, Lomu”.

Its logline is “experience the unstoppable force of Jonah Lomu, the greatest rugby player to walk the planet, whose indomitable spirit reshaped the game forever”.

Lomu came to fame at the 1995 Rugby World Cup, and still shares the record for most tries (15) at World Cups with South Africa’s Bryan Habana.

Rachel Maher is an Auckland-based reporter who covers breaking news. She has worked for the Herald since 2022.