Protecting brands that incorporate Maori culture

29 June 2009
Maori culture is a distinctive and authentic culture. By incorporating Maori words, images, or patterns in your brands, you can add value and help create a point of difference for your business. However, when developing these brands, you must consider whether it is likely to be offensive to Maori.

As with all cultures, Maori traditionally attribute spiritual and cultural significance to certain words, images, and patterns.  Inappropriate use of these words, images, and patterns could therefore cause offence to Maori.


What was acceptable in the past

Under previous legislation, there were registered trade marks that incorporated Maori words, images, or patterns that we would possibly now consider offensive to Maori.  For example, the image of a Maori Chief’s face was used in a brand to promote butter.  Another brand used a Maori Chief’s face to promote Worcester sauce, pickles, and chutney.  Yet still another brand used a tiki image to promote ale and stout.  While these brands may have been acceptable for registration in the past, they are unlikely to be acceptable for registration today.


What is acceptable now

Under the current New Zealand Trade Marks Act there are specific grounds for not being able to register a trade mark.  One ground requires that the Commissioner must not register a trade mark if the Commissioner considers that its use or registration would be likely to offend a significant section of the community.  Maori are specifically mentioned as a section of the community that must be considered. 

What this means in practice is that all trade mark applications received by the Intellectual Property Office of New Zealand are assessed to determine whether they would, among other considerations, be offensive to Maori if they contain a Maori word or are derived from a Maori image, or pattern.  The Intellectual Property Office will also assess whether a foreign word, abbreviation, image, or pattern is likely to be offensive to Maori if it is capable of being recognised as Maori in origin.  For example, spiral patterns, whether a Maori koru pattern or a pattern from another culture, will be recognised as a Maori pattern in New Zealand and treated as such.


The Maori Advisory Committee

To provide assurance that the decisions of the Commissioner in respect of trade marks containing Maori words, images, or patterns are made appropriately, the Trade Marks Act directs the Commissioner to appoint a Maori Advisory Committee. 

The Committee meets approximately four times a year and consists of individuals who have expertise in te ao Maori (Maori worldview) and tikanga Maori (Maori protocol and culture).  Information about the Committee members can be found on the Intellectual Property Office website: www.iponz.govt.nz. 

The role of the Committee is to help the Commissioner assess whether these particular trade marks are offensive to Maori.  Since the Committee has been advising the Commissioner, very few trade marks have been held by the Committee to be offensive to Maori.


The current process

You will be notified if your trade mark application has been sent to the Committee for consideration.  If the Committee does not believe that the trade mark will cause offence, then the application will proceed through the usual process of examination.  However, if the Committee does have concerns, then it will provide the Commissioner with advice on whether the trade mark is likely to be offensive to Maori. 

The Commissioner will then consider the Committee’s advice and will either agree with the Committee and issue a compliance report or will disagree with the Committee and allow the application to proceed through the usual process of examination.  By seeking advice from the Committee, the Commissioner is able to strike a balance between the misuse of Maori culture and the desire of companies to create distinctive and authentic brands.


What can you do?

If you plan to use Maori words, images, or patterns in your brands, you may like to consider whether your use is likely to offend Maori at the design stage.  Consultation with iwi, language institutions, and government departments, for example, could help you determine whether your proposed brand is likely to be offensive to Maori prior to making use of it and before you apply for protection.  It could also help you increase the authenticity and depth of your brand.

If you have already consulted with other Maori and developed a brand that does incorporate Maori words, images, or patterns and are unsure if it is likely to cause offence, the best course of action may be to apply for trade mark protection, wait for a response from the Commissioner, who may seek advice from the Committee, and defer use of the brand until after you receive a response.

An edited version of this article was published in Apparel, June 2009.