Lawyer Monthly Magazine - August 2019 Edition

“To appropriate something or to misappropriate something it must be owned by someone in the first place”, says Professor [at the University of Cape Town] Caroline Ncube to the BBC. “What I am saying is that the law doesn’t actually allow us to own cultural heritage like we would like to own it, and so there is no protection.” This lies true in the UK too. As Andy explains: “The trademark laws of the UK and EU do not have provisions that specifically prevent the registration of a name on the basis that it may be deemed to be ‘culturally sensitive’. The closest provisions that we have are the absolute grounds of contradiction to public policy or accepted principles of morality, or bad faith, but both of these are relatively difficult to fall foul of.” But if cultures cannot trademark themselves, what can be done and what should creators be aware of? As Caroline suggests, perhaps the solution is a unique legal system that aims to protect culture that works outside the field of IP law. Kim is not the first one to fall foul of culture appropriation when trying to trademark and protect her brand. Earlier last year Disney also fell into the spotlight regarding the trademarked Swahili phrase “Hakuna Matata” from the much-loved filmThe Lion King.Apetition for the company to drop its trademark read: “The term ‘Hakuna Matata’ is not a Disney creation, hence not an infringement on intellectual or creative property, but an assault on the Swahili people and Africa as a whole”, although it was said that there was confusion to what the trademark entailed. A press officer for Disney explained how the trademark was merely a way to protect itself against other companies that might try to exploit the Disney brand when it came to merchandise. They said: “Disney’s registration for ‘Hakuna Matata,’ which was filed in 1994, has never and will not prevent individuals from using the phrase.” In essence, a companymay think to trademark a word or phrase only merely considering its use in the commercial sphere. Outside of this, the public is obviously free to use such phrases, like Hakuna Matata, as they wish. Nonetheless, companies must consider whether the possibility of negative backlash for their commercial decisions outweigh what they will gain in the long run. Is it worth it? Has Disney been able to prevent other creators from using ‘Hakuna Matata’ pirating their intellectual property? It is all part of the process of developing your brand; what is a wise commercial move, and what should be left alone? In a world of ever-growing diversity and inclusion, it has become more prevalent to know the history and meaning behind everyone’s culture and tradition. - 11 -