Trade Marks (International Treaties and Enforcement) Amendment Bill; First Reading
Rahui Katene, MP for Te Tai Tonga
Tuesday 7 April 2009; 9.30pm

The Declaration on the Rights of Indigenous Peoples has a very clear statement in Article 31 of that Declaration, about the interest that we hold as indigenous peoples, of the concept of a trade mark

It says, and I quote that:

- Indigenous peoples have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions;

- and that in conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

An overwhelming majority of nations, 143 countries – adopted this declaration on the 13th September 2007. And just last Friday, Australia added its endorsement; a move which the Maori Party has been greatly heartened by.

The only countries to sit outside on the issue of indigenous rights are Canada, America, and Aotearoa - but we are hopeful that this Government will address that appalling lack of confidence demonstrated by the previous administration.

Why would we not want to keep up with the advances across the world as indeed is expressed in this Trade Marks legislation?

The amendments before the House tonight are specifically to update our legislative framework within the Trade Marks Act and the Copyright Act to be in line with the agreements and protocols already mentioned by other speakers – the Madrid Protocol; the Nice Agreement; the Singapore Treaty.

These protocol documents establish an international registration regime and a classification system for trade marks; and it is extremely positive that this Parliament will be giving effect to commitments which are consistent with international practice.

There are some pressing reasons upon us for doing so.

This Bill responds to the growing problem around the globe that represent a burgeoning market for the manufacture, distribution and sale of counterfeits.

The Bill will require the Ministry of Economic Development and the Customs Services to now enforce the criminal offence provisions related to counterfeit goods and pirated works.

So why is this so important?

Clearly, the existence of counterfeits undermines the viability and profitability of legitimate businesses.

But for many businesses, the compliance costs to register trade marks often prevents them from taking the action to protect their unique brand – their logos, their slogans, their marketing edge.

The amendments in this legislation will help to make it easier for consumers to recognise the given quality of a particular business – while also enabling that trader to protect their unique goods and services.

But I want to focus on this issue of ‘the unique quality’ as it pertains to indigenous peoples.

Just as the Madrid, Nice and Singapore Treaties have advanced the international trade mark protection; the World Intellectual Property Organisation (WIPO) has been progressing great innovations in indigenous models to protect indigenous knowledge and intellectual property

Specific protections for Maori traditional knowledge and intellectual property have emerged within indigenous declarations on cultural and intellectual property such as the Mataatua Declaration, and so it is extremely surprising that this body of work appears to be over-looked in the evolution of this Bill.

This is particularly concerning in that what has consistently happened to date, is that non-indigenous local and overseas businesses have trade marked and exploited Maori images, words, names, etc, and those of other indigenous peoples to brand themselves internationally, with impunity because there are no actual laws preventing them from doing so.

So we have seen
- a French security firm take on the name, Maori, because it represented a famous rugby team;
- a Maori tattooed face kit is sold on an American Halloween website;
- the New Zealand Rugby Football Union taking on the branding campaign of the fearless Maori warrior complete with the death-defying haka to promote their Allblack team, and yet in the same breath discard the New Zealand Maori rugby team from the 2009 draw;
- we have seen Phillip Morris using Maori designs in their cigarette packaging;
- and as recent as a couple of weeks ago, a Lion Red billboard was spotted in Te Karaka with the slogan, ‘Rangatira Liquor’.

These are but just a few of the deplorable examples where Maori traditional knowledge and intellectual property has been vulnerable to exploitation.

And yet still there is no movement in New Zealand law or policy development despite being very aware of the work and funding the development of it in the Pacific.

There is a very impressive foundation readily accessible to Parliament through the form of the Maori made mark, toi iho, a registered trade mark and we are all looking forward to the insights of the Waitangi Tribunal which is expected to report back on WAI 262 claim by end of the year.

But the message that the Maori Party brings to this Act is to really honour the unique place of tangata whenua within this land, by addressing Maori specific issues of cultural and intellectual protection.

The former Government lacked the political courage to progress protections for Maori traditional knowledge and intellectual property in domestic legislation. This was unsurprising, for a Government which introduced the Foreshore and Seabed Act, rejected the Declaration on the Rights of Indigenous Peoples; and stood by while terror attacks took place in the tribal nation of Tuhoe.

But we are in new times, with a new Government, and we hope a new will to recognise the importance of mana maintenance and enhancement.

This is a Government, which has been prepared to state in print, that it will act in accordance with Te Tiriti o Waitangi, the Treaty of Waitangi.

Te Tiriti o Waitangi held up the promise of a strong, unified nation. It is a promise which is best expressed in relationships of mutual respect and of good faith.

In essence, this is what is meant by mana enhancing behaviour – when we give expression to value that are uplifting and enriching.

And so this is what we want to see in further iterations of this important piece of legislation - the implementation of sui generis systems – new systems to protect Maori knowledge.

We see this as a solid step towards supporting the Māori partner to the Treaty, to once again distinguished by our vibrant, growing and prosperous economy, as indeed we were in 1840.

The Bill may provide benefits to Maori business owners wanting to apply for trade marks, and particularly if they are wanting to trade internationally. It is currently quite expensive and cumbersome to register trade marks given it needs to be done separately in each country a business wants to trade in; and so we welcome the relief the legislation offers in that regard.

We want to see Maori specific indigenous knowledge and intellectual property protection legislation which gives due regard to the unique value of the indigenous brand.

We have seen many Bills such as this and other amendments to intellectual property laws which express a willingness to sign up to international agreements which protect the Western business and cultural mainstream.

What we are calling for now, is a proactive approach in supporting Maori intellectual property protections.

Where there’s a will, there’s a way – and it seems the will is just not there yet – but we remain optimistic that the opportunity provided by the select committee process is an excellent way to find the right way to protect Maori traditional knowledge / intellectual property rights.

In order to enable that opportunity to happen, the Maori Party will support this Bill at its first reading.

ENDS

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