Well IPONZ, the Intellectual Property Office, have opened up a can of worms in accepting that the words ‘KA MATE’ and a logo featuring those words can be trademarked.
This follows the mandated authority for Ngati Toa, Te Runanga O Toa Rangatira Inc unsuccessfully trying from 1998 to 2006 to win trademark registration for the entire words to Ka Mate, the well-known All Black haka, and spur-of-the-moment performance given by overseas kiwis. It is also the subject of various other renditions from YouTube lego to advertising take offs.
Originally IPONZ ruled that the words were in the public domain and could not be monopolised as no one particular organisation could be identified as the trade source of goods or services promoted in conjunction with this haka. In other words, it wasn’t a ‘brand’ capable of distinguishing your activities from those of others.
On that basis, Ka Mate’s genie was well and truly out of the lamp. For the majority of people, this haka is part of our cultural identity.
As Chapman Tripp partner Matt Sumpter points out, while expressing surprise at IPONZ’s decision, it’s a bit like the words ‘kiwi’ or ‘Aotearoa’, or the shape of the NZ coast line being trademarked. They’re words and images which no one can own.
His argument is that words like Ka Mate have fallen into the public domain.
Sure, for new artistic work, or the words of a new haka (e.g. the alternate All Black haka Kapa o Pango) copyright can protect the performance and communication of dance and other work in and to the public. That lasts for the life of the author plus 50 years.
And copyright protection also requires identification of a precise author – pretty tricky in Ka Mate’s case.
Now, apparently the NZ Rugby Football Union and another trading company have opposed the IPONZ decision on the KA MATE trademark issue in proceedings pending before Commissioner of Trade Marks.
That will be an extremely interesting test case.
Heaven forbid though that we start seeing cease and desist letters to those before mentioned YouTube lego ‘films’ and advertisements. That would be just the type of publicity NZ Inc, we who ‘own’ (if such a thing is possible) our cultural experience, would really want.
Given that our cultural image overseas is one of not being much fun to do business dealing with (see Tony Smale’s research findings here), it would be just the type of po-facedness (if there is such a word) we could do without.
Surely too, it comes down to the idea that the only kind of bad publicity is no publicity…..just don’t spell my name wrong.
If Ngati Toa were a bit more creative, there would be other ways to take advantage of, or link to the historical luck that had Ka Mate chosen by the 1905 All Blacks as its pre-match performance.
Then again, maybe the Runanga’s really happy to pay lawyers to police what’s in the public domain.