1. USE OF CULTURAL TRADEMARK TO PROTECT NATIVE HAWAIIAN ARTS
Hale Ku’ai Study Group
Maile Meyer, Maile Andrade, Co-Chairs
Leighton Chong, Danielle Conway-Jones, IP Counsel
Fiscal Sponsor: Pa’i Foundation
Funded with a Grant from OHA

2. A DISTINCT NATIVE CULTURE:
OWN HISTORY
DISTINCT RACE
OWN LANGUAGE
TRADITIONAL LANDS
TRADITIONAL KNOWLEDGE, CUSTOMS, PRACTICES
UNIQUE CULTURAL EXPRESSION: ARTS & CRAFTS
SELF-GOVERNING, SOVEREIGN PEOPLE

3. CULTURAL ARTS & CRAFTS:
PROTECTING
NATIVE HAWAIIAN
CULTURAL ARTS & CRAFTS:
THE LEGAL FRAMEWORK

4. INTERNATIONAL LAW: CONVENTION ON BIODIVERSITY: FRAMEWORK
TO PROTECT WORLD’S SPECIES & CULTURES
WORLD INTELLECTUAL PROPERTY ORG. (WIPO)
ADAPTING IP LAWS FOR CULTURAL IP
REGIONAL LAW: PACIFIC ISLES REGIONAL PROTOCOL: TO
PROTECT CULTURAL IP IN PACIFIC BASIN
U.S. FEDERAL LAW: INDIAN ARTS & CRAFTS ACT (IACA)
U.S. TRADEMARK LAW: ORIGIN, CERTIFICATION
U.S. COPYRIGHT LAW: ARTWORK, DESIGNS
STATE LAW: REGULATION OF STATE CULTURAL RESOURCES
PROTECTION OF MADE-IN-STATE PRODUCTS
CONSUMER (ADVERTISING) PROTECTION LAWS
ECONOMIC, OTHER: ARTS COOPERATIVES, GUILDS, HALAUS, HUIS
ORGANIZED ACTION, BOYCOTT
NEW TYPES OF LAWS FOR CULTURAL IP

5. WHAT IS A CULTURAL TRADEMARK?
DISTINCT WORD(S), SLOGAN, LOGO, DESIGN OR COMBINATION
NOT MERELY DESCRIPTIVE OR MISDESCRIPTIVE
SUBJECT TO LEGITIMATE CONTROL OF A LEGAL ENTITY
IS USED TO DESIGNATE CULTURAL GOODS OR SERVICES
INDICATES / CERTIFIES ORIGIN, QUALITY, AUTHENTICITY, &/OR ENDORSEMENT OF GOODS OR SERVICES
DISTINGUISHES FROM NON-APPROVED GOODS/SERVICES

6. EXAMPLE OF USE OF
CULTURAL TRADEMARK:
INDIAN ARTS & CRAFTS

7. PROBLEM: CULTURAL ARTS & CRAFTS ARE UNIQUE TO INDIAN TRIBES
UNIQUENESS ATTRACTS OUTSIDE PRODUCERS AND VENDORS
CHEAP, MASS-PRODUCED FAKES FLOOD INTO INDIAN MARKET
ARTISANS CANNOT COMPETE WITH MASS-PRODUCED FAKES
ARTISANS CANNOT EARN A LIVING FROM THEIR WORK
CULTURAL ARTS BEGIN TO DIE OUT

8. INDIAN ARTS & CRAFTS ACT (IACA) ORIG
INDIAN ARTS & CRAFTS ACT (IACA) ORIG. ACT 1937, ACT OF 1990, AMENDED 2000
UNLAWFUL TO OFFER, DISPLAY FOR SALE, OR SELL PRODUCTS
FALSELY SUGGESTING IT IS INDIAN MADE OR PRODUCED
INDIAN: ANY MEMBER OF A RECOGNIZED TRIBE (U.S./STATE)
OR PERSON OF INDIAN DESCENT CERTIFIED IN TRIBAL ARTS.
VIOLATORS SUBJECT TO $250,000 FINE &/OR 5-YR PRISON TERM
BUSINESSES SUBJECT TO $1,000,000 FINE
INDIAN WORKS IDENTIFIED BY APPROVED TRADEMARKS
HAS REVERSED FLOODING OF FAKES INTO INDIAN ARTS

9. IACA TRADEMARK + TRIBAL MARK

10. IACA VENDORS ASSOCIATION TRADEMARK

11. EXAMPLES OF NON-INDIAN TRADEMARKS:
EXAMPLES OF IACA-PROTECTED INDIAN TRADEMARKS: “INDIAN MADE” “INDIAN PRODUCED” “PRODUCED BY WINNEBAGO TRIBE OF GREAT PLAINS”
EXAMPLES OF NON-INDIAN TRADEMARKS:
“INDIAN-STYLE” MOCCASSINS
NECKLACE IN THE “CHEROKEE STYLE”
“PRODUCED BY SILVERCLOUD, ARTIST OF SIOUX DESCENT”

12. RESULT: REVITALIZED INDIAN ARTS & CRAFTS (TODAY A $1B MARKET)

13. LESSONS LEARNED: IACA MODEL
DEPENDS ON RACIAL DEFINITION OF WHO MADE PRODUCT
ARTIST MUST BE INDIAN MEMBER OF RECOGNIZED TRIBE
SUPPORTED BY U.S. FUNDING & DOJ/FBI ENFORCEMENT
HAS REVITALIZED THE INDIAN ARTS MARKET
FEW CRIMINAL CONVICTIONS, BUT STRONG MONITORING
SUCCESS IS LEADING TO BROADER MARKETS: TRIBAL MARKS
CAN HELP NATIVE HAWAIIANS ONLY W/ U.S. RECOGNITION

14. EXAMPLE OF USE OF
CULTURAL TRADEMARK:
MAORI ARTS & CRAFTS

15. TOI IHO (MAORI MADE) TRADEMARK

16. “TOI IHO” CULTURAL TRADEMARK SYSTEM
ESTABLISHED UNDER NEW ZEALAND LAW IN 2000
MAORI ARTS BOARD PROVIDED WITH OWN STAFF & FUNDING
MAY BE APPLIED TO WORKS BY ARTISTS OF MAORI DESCENT.
MAY BE APPLIED TO VENDORS OF 6+ CERTIFIED ARTISTS
MAY BE APPLIED TO JOINT WORK OF MAORI ARTISTS & OTHERS
MAORI BOARD HAS INSISTED ON AUTHENTICITY & QUALITY
HAS ONLY CERTIFIED MASTER ARTISTS
PROGRAM TO BE TRANSFERRED TO MAORI ARTS BOARD CONTROL

17. LESSONS LEARNED: MAORI MODEL
EMPHASIZES AUTHENTICITY AND EXCELLENCE OF WORKS
BACKED BY MASTER ARTISTS WHO DON’T NEED TRADEMARK
AVOIDED DIVISIVENESS OF JUDGING WORKS OF ARTISTS
AVOIDED DIVISIVENESS OF RACE ID (MASTERS ARE MAORI)
AVOIDED DIVISIVENESS OF CONTROL (INITIAL NZ ADMIN)
PROVIDES ART GRANTS FOR DEVELOPING ARTISTS ($2M/YR)
SUCCESS IS LEADING TO BROADER MARKETS: TRIBAL MARKS

18. CAN CULTURAL TRADEMARKS NATIVE HAWAIIAN ARTS & CRAFTS?
BE USED TO PROTECT
NATIVE HAWAIIAN ARTS & CRAFTS?

19. THREATS TO NATIVE HAWAIIAN ARTS
COMMODIFICATION OF CULTURAL ARTS, CRAFTS, PRODUCTS
LOSS OF LIVELIHOOD OF NATIVE ARTISANS & PERFORMERS
LOSS OF TRANSMISSION OF KNOWLEDGE TO YOUNGER GENS
DILUTION THROUGH FAKES AND IMITATIONS
MISAPPROPRIATION OF CULTURE BY NON-HAWAIIANS
PROFITING FROM CULTURE W/O COMPENSATING HAWAIIANS
DEGRADING INTEGRITY AND SANCTITY OF CULTURE

20. EXAMPLES OF
CULTURAL TRADEMARKS
THAT HAVE BEEN USED
IN HAWAII

21. HAWAII VISITORS BUREAU “WARRIOR” TRADEMARK (FOR HISTORICAL PLACES)

22. HVCB “ISLANDS OF ALOHA” TRADEMARK (FOR TOURISM SERVICES)

23. BISHOP MUSEUM “PETROGLYPH” TRADEMARK (FOR CULTURAL BOOKS)

24. HALE KU’AI “NATIVE HAWAIIAN MADE” TRADEMARK (FOR ARTS & CRAFTS)

25. SOME ISSUES TO CONSIDER NATIVE HAWAIIAN CULTURAL TRADEMARK
IN ADOPTING A
NATIVE HAWAIIAN CULTURAL TRADEMARK

26. RACIAL DEFINITION? = U.S. CONSTITUTIONAL PROBLEMS
JUDGING OTHER PEOPLE’S WORKS? = DIVISIVE
CERTIFY MASTER ARTISTS &/OR ARTS ORGS ON QUALITY ISSUE?
DESIGN NEW TRADEMARK v. USE WELL-KNOWN TRADEMARK?
CONTROL BY MAOLI ARTS BOARD, OR STATE BOARD INITIALLY?
NEED, OR AVOID, STATE LEGISLATION & FUNDING?
VISITOR BUSINESSES: CARROT = TM LICENSE, STICK = BOYCOTT?

27. HALE KU’AI STUDY ON NATIVE HAWAIIAN CULTURAL TRADEMARK
HAS GRANT FUNDING FROM OHA FOR STUDY IN IN 1ST HALF 2006
WILL COMPARE IACA, MAORI, PACIFIC & OTHER MODELS
WILL HOLD MEETINGS FOR INPUT OF MAOLI ARTISTS IN 4 COUNTIES
WILL HOLD MEETING FOR INPUT OF BUSINESS, LAW, AND GOVT
WILL HOLD CONFERENCE TO ANNOUNCE STUDY CONCLUSIONS
WILL RECOMMEND MODEL HAWAI’I PROGRAM FOR IMPLEMENTATION

28. MAHALO NUI! For further information, contact: Hale Ku’ai Study Group
Maile Meyer, Maile Andrade, Co-Chairs
P.O. Box Honolulu, HI USA
Tel: (808)