An historic example of Māori imagery and words used in product branding. Image/Auckland Libraries Heritage Collections 7-C1805
Can anyone own a word? And what if it's in te reo? Kim Knight looks at the race to claim Māori language trademarks.
Huia, mohua and tōrea are birds. They are also wine labels.
Mahi means to work. Matua can be translated as father, important and grown-up. These words are also wine labels.
Te reo is not compulsory in schools but walk down any liquor aisle and witness companies cashing in on its marketing mana. It's not just the alcohol industry - in the past five years, applications for Māori trademarks have increased 119 per cent. Some, like those from Fonterra and Air New Zealand, have made headlines. Hundreds more have flown under the radar.
"Māori are understandably concerned that businesses may monopolise Māori words," says intellectual property lawyer Jenni Rutter. "I think the trademarking of Māori words and images could also be seen as a positive thing, because it shows that Māori is a living language, that it is a language that has value in commerce, that it is something incredibly special that only New Zealand has."
But, she says, anyone who wants to trademark te reo needs to understand the process - and the potential pitfalls. Back in September, Rutter (an Auckland-based partner at Dentons Kensington Swan) did a deep dive into te reo trademark applications for a presentation to a transtasman intellectual property conference.
Her research, shared with the Weekend Herald, showed that in 2017 there were 546 applications for Māori trademarks. This year, that figure more than doubled to 1195. Meanwhile, since 2016, the New Zealand Intellectual Property Office (IPONZ) had objected to just over 200 applications on the grounds that they were likely to offend Māori, and a further 470 on the basis that the Māori marks being sought were too descriptive or non-distinctive.
Anybody can search the IPONZ register. In the week this story was being written for example, you could find an application for the word "Cannabistro" in relation to the wholesale, retail and merchandising of marijuana, hemp and cannabis. A company owned by movie star Mark Wahlberg wanted to trademark the words "Wahl Sauce" and "Wahlbrewski". And more than a dozen businesses and individuals were seeking trademarks featuring Māori words or visuals.
Some, like Waiheke Rainwater Systems, were simply place-names linked to services. Others were less specific. "Waimarie" (a word associated with luck and good fortune) was being sought for exclusive use across three goods and service categories, including drinking water filters; "Koha iti" (which might translate as "small gift") had been lodged by a floristry company.
If words have power, a trademarked word has a very particular potency. Legally, nobody can own a word - but anybody can be granted exclusive rights to use it in relation to specifically stated categories of goods or services.
When Air New Zealand sought to trademark a logo that read "kia ora" it was only for use on its magazine. When Fonterra sought to trademark 12 te reo Māori words - including awa and kōwhai - it was only for use on dairy products. And when two young filmmakers applied to trademark the phrase "Hāngī Pants"? Well, more on that later.
What happens when you try to trademark te reo Māori?
"It doesn't matter if a word has 5000 different meanings," says Rutter. "If one of them is Māori it will be sent to the Māori Trade Marks Advisory Committee to have a look at."
That requirement extends to geographic place-names. Recently, when the company that owns the Weekend Herald sought newspaper masthead trademarks referencing Whanganui, Waikato and more, the applications went to the Māori advisory committee for scrutiny. (A spokesperson said no concerns were raised, adding "these marks don't give NZME any exclusivity over the place names themselves").
In a world where newsreaders routinely introduce themselves in Māori and te reo courses are oversubscribed with new learners, it is shamefully easy to forget that it is only 34 years since Māori became an official language of Aotearoa. In 1984, telephone toll operator Naida Glavish risked her job when she greeted callers with "kia ora". Today, trademark law begins with the idea that New Zealand is bilingual; that, in this country, a Māori word and an English word will be equally understood by its citizens.
The next step for trademark decision-makers: Is it offensive? And is it descriptive?
Rutter says no trademark can be registered if it is likely to offend a significant section of the community. (That community extends beyond consideration of Māori and the use of te reo - back in 2001, for example, Red Bull's attempt to register "bullshit" failed). Trademarks are also assessed to confirm whether or not they are distinctive and non-descriptive, a process that may have implications for Fonterra as it seeks to rebrand Kāpiti cheese products.
Back in July, the Herald reported New Zealand Milk Brands was seeking to trademark 12 words: Kāpiti, awa (river), kōwhai (yellow), kānuka (white tea tree), kakato (delicious), pakari (firm), rarama (gleam), akatea (white rātā), kahurangi (blue), kahikatea (white pine), te tihi (summit) and kirīmi (cream).
"Given the word 'cream' is incapable of distinguishing one trader's milk products from another's, the word 'kirīmi' must surely fail to qualify as a trademark for cheese," says Rutter. "Otherwise, it would be the equivalent of registering the word "soapy" for soap."
Fonterra doesn't actually need a trademark to call its cheese "kōwhai" (or even "yellow"). Trademarks provide exclusive use to a name, but there is no legal requirement to register that name before printing a label and slapping it on a product.
Rutter: "If I was another cheese manufacturer and I wanted to make sure that in the future I could also describe my cheese as kirīmi, the first thing I would do right now is launch that cheese. There is no basis to stop me if the trademark never gets registered - you can't infringe a trademark application, you can only infringe a trademark registration."
Backlash to the Fonterra applications has included a call for the company to "stick to milking cows, not Maori". National Māori Authority chairman Matthew Tukaki said the attempt to gain technical ownership over Maori words was "pure arrogance" and could create a situation where Māori businesses might have to beg to use those words without fear of a cease and desist letter. Debate raged on social media, with many arguing that non-Maori businesses should not trademark Maori words.
This week, IPONZ confirmed the Fonterra applications were still being considered by the Māori Trade Marks Advisory Committee which meets next on November 24. Rutter says the identity of any trademark applicant is outside the committee's remit.
"The concept that ownership of a Māori word or image could depend on the whakapapa of the applicant is not something the Committee should consider.
"If you start drawing distinctions . . . that's impossible to determine and wouldn't be fair."
Lynell Tuffery Huria (Ngāti Ruanui, Ngāruahine) is an intellectual property lawyer with Kāhui Legal, a company whose clients include groups monitoring the use of te reo trademarks.
"The increase in branding featuring Māori words has just exploded," she says. "Every government department has an English and te reo Māori name now. For me, there is a bit of tension between wanting people to use it and protecting the language. Intellectual property law forces you to think about that clash."
Tuffery Huria says a te reo Māori trademark creates an "illusion of authenticity" that might not always be accurate.
"If you're presenting that word or image to the world, to your customer base, there is an inherent assumption that you are Māori, or you have a kaupapa Māori organisation or you live up to the values of what that kupu, and all it represents, stands for.
"And if you don't live up to that, then actually, is it appropriate for you to be using that kupu or that image as your brand name?"
Does the argument go both ways? What about Māori businesses that use English brand names and labels? That, says Tuffery Huria, is a question she has been debating with colleagues for years.
"You've allowed your language to be misused and appropriated in this manner. That's your own fault. I'm part of the 'you' in this situation. We've allowed that to happen. But Māori have not agreed to allow that to happen . . . te reo Māori is legally recognised as a taonga. What does that mean? It doesn't mean don't use it. It means living up to those obligations and responsibilities . . . if we don't look after it, it will get misused, misappropriated and the value will dissipate."
The days when you could buy Tiki-branded hams, bacons and lard (first registered as a trademark in 1901) are over. But, as recently as 2005, Philip Morris was marketing cigarettes called Māori Mix in Israel (the box featured quasi-Māori imagery and a map of New Zealand). And how about that liquor aisle? In 2016, Birkenhead Brewery Company bowed to pressure and removed references to the famous Rotorua story of the lovers Hinemoa and Tutanekai after their descendants expressed disgust at its use on a "Legend Series" range of beer; last year the Kāpiti Coast makers of "Indigenous Gin" agreed to drop a label design inspired by Māori tattoo.
The Weekend Herald sought comment from New Zealand Winegrowers about the extensive use of te reo labelling within its industry. In a written statement, it replied "showcasing our indigenous culture is something the New Zealand wine industry embraces and is proud of, and many New Zealand winegrowers make a deeper connection with Māori culture and values beyond the branding of their product".
Kaitiakitanga - the guardianship of the land for future generations - was put into practice via the Sustainable Winegrowing New Zealand certification programme which now covers 96 per cent of vineyard producing areas. And the principles of whanaungatanga (celebrating relationships, kinship, and a sense of family connection) were "embraced by the industry".
Tuffery Huria says te reo should not be used because it's trendy, or has good optics.
"We all have a responsibility to uphold Māori culture and identity, because that's how we protect New Zealand culture and identity . . . if you've signed up to the use of a Māori word and you aren't willing to sign up to those obligations and responsibilities, then is that a true reflection of your organisation?"
The New Zealand Intellectual Property Office does not appear to have an official te reo name. But that idea that it should follow kaupapa Māori? In June 2019, the production company Ten Canaries sought to trademark its short film Hāngī Pants. The application was opposed after the Māori Advisory Committee expressed concerns: "Colloquially, there are derogatory connotations to the term."
On a Zoom call the Weekend Herald asks Jake Mokomoko (Te Whakatōhea, Te Rarawa) and Claire Varley (Te Āitanga a Māhaki, Te whānau a Apanui) what, exactly, does "hāngī pants" mean?
"Is this entrapment?" laughs Mokomoko. "Its origin was that it was a term used for someone . . ."
Varley finishes his sentence: " . . . Who has plenty to share around in the pants department."
The film is a comedy, directed by Mokomoko, about a succession of ex-wives who attempt to outdo each other in the karanga department at a tangi. It is bright and funny and, says Mokomoko, "we just wanted to be protected for the art that we created".
Varley says the trademark application process was lengthy, and she was surprised when it was ultimately rejected on the grounds that it contained material offensive to Māori.
"Not stepping on anyone's toes, but we are quite versed in tikanga . . ."
Mokomoko says, "I think that if you are the indigenous culture that they speak of, then there should be some consideration made, and I think it boils back down to a dialogue that doesn't happen. It's just a generic application form . . . with tikanga Māori, with the Māori world, it is usually kanohi ki te kanohi - face to face . . . a conversation, a dialogue.
"It's one thing to show a front or a facade of supporting Māori by using Māori words or names for government agencies or something. But it's another thing to actually have that whakaaro or that mindset about moving forward with your processes for that organisation."
Ten Canaries' next film, says Mokomoko, will also have a Māori name.
"We're going to do a longer format of Hāngī Pants. It is going to get made and it will have a great cast and be in a longer format and we'll be playing at cinemas for people's money."
Varley: "And it needs to be protected."
'He has disregarded our voice and continued with this divisive kaupapa.'