Ka Mate haka denied trade mark protection

Thursday 21st June 2012

The All Blacks are famous not just for their rugby prowess, the best in the world of course, but the haka they perform before each game.  This haka, or war dance, is known as the “Ka Mate” haka. 

The Ka Mate haka is attributed to a Maori tribe called Ngati Toa.  The words of the haka itself have little, if anything, to do with rugby, but the Ka Mate haka has become synonymous with the All Blacks, other New Zealand sports teams and New Zealand in general.

In 1999, trade mark applications for the full text of the Ka Mate haka were made.  Those applications spent more than ten years before the Intellectual Property Office of New Zealand before being abandoned.  Then in 2010, Ngati Toa made applications for four phrases out of the Ka Mate haka as separate trade mark applications.  Despite the longer versions being consistently rejected by the Intellectual Property Office of New Zealand, the four shorter versions were accepted almost immediately.

What then happened was that one of Baldwins’ clients, Prokiwi International Limited, a New Zealand souvenir supplier, received a letter from the New Zealand Rugby Union asking Prokiwi to stop producing a souvenir tea towel with the words of the Ka Mate haka and images of what the New Zealand Rugby Union claimed were All Blacks on it.  The letter pointed out that Ngati Toa had made trade mark applications.  Ngati Toa then wrote to Prokiwi as well.  Prokiwi then instructed Baldwins to oppose the trade mark applications.  Both parties filed evidence and a hearing was held in March 2012.

Prokiwi’s primary argument in the opposition was that the Ka Mate haka is part of New Zealand culture and heritage, and traders and sports teams should be free to use it without fear of a trade mark infringement action.

Prokiwi’s argument was accepted, and the oppositions were upheld, and the trade mark applications refused.

The oppositions raised interesting issues about the appropriate way to protect indigenous and cultural rights.  One of Ngati Toa’s concerns, understandably, is to prevent inappropriate and offensive performances and uses of the Ka Mate haka.  A trade mark registration would be more restrictive than just inappropriate and offensive performances and uses though, and the Assistant Commissioner who decided the opposition ruled that the Ka Mate haka should remain in the public domain.

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