Hayley Tarr, Principal of Tarr Law, discusses the need for IP Australia to seek consent from the appropriate Aboriginal cultural authority before accepting trade mark applications comprising marks that include Aboriginal language words, or figurative representations of Aboriginal art or stories.
On 30 June 2020, Terri Janke and Company Pty Ltd published a report, commissioned by IP Australia, titled “Indigenous Protocols and Processes of Consent relevant to Trade Marks”. This report recommended that any Australian trade mark applications comprising marks that include Aboriginal language words, or figurative representations of Aboriginal art or stories, should only be accepted with the consent of the appropriate Aboriginal cultural authority. Implementing this recommendation is highly complex, given there is not one Aboriginal people, but different Aboriginal people with different languages and stories, from different regions around Australia. Who is to be contacted for consent? And how is that consent to be garnered?
Different models for obtaining consent are discussed in the report, including:
- Language based consent models (language centres);
- Land based consent models;
- Protocols developed in collaboration between Traditional Owners and government; and
- Indigenous Arts Organisations consent models.
Yet, two years on, none of these have been implemented.
In this time, 47 Australian trade mark applications comprising what the applicant acknowledges to be an Aboriginal word, have been accepted in Australia, without IP Australia seeking the formal consent of any Aboriginal cultural representatives.
These marks include:
Two of these trade marks are owned by an organisation from the Netherlands. Should a foreign organisation be allowed to register an Australian Aboriginal word as its trade mark? Perhaps, if it has used the mark for some time or selected it for an alternate meaning and it is just coincidence that the word also has a meaning in an Australian Aboriginal dialect. But, even in these seemingly reasonable circumstances, it could result in a harsh outcome if a foreign corporation has a monopoly over an Australian Aboriginal word, and therefore, Australian Aboriginal people are stopped from adopting that word as their own brand name, because it is already taken.
Three of the above marks are owned by the State of Western Australia. Two of the above marks are owned by the Commonwealth of Australia. One of the above marks is owned by The Council of the City of Sydney. At a time when we are still trying to restore Aboriginal land rights, it seems a bit fraught for government organisations to be acquiring rights to Aboriginal words as trade marks, especially subsequent to an IP Australia commissioned report recommending that rights only be granted with the consent of Aboriginal people.
On 21 September 2022, The Australian Government put out a press release announcing they are seeking public expressions of interest from individuals to be considered for the Ambassador for First Nations People. While this role is directed towards informing Australia’s foreign relations, given the international nature of intellectual property rights, it is hoped that the person appointed as Ambassador for First Nations People will make some inroads towards implementing a system for approving trade marks bearing Aboriginal language words, or figurative representations of Aboriginal art or stories.
Until then, persons concerned about any Australian trade mark applications comprising Aboriginal language words, or figurative representations of Aboriginal art or stories, must either request revocation of acceptance or oppose the application, potentially due to it being offensive. This was tried by Jabree Ltd, when the word BOROBI, meaning koala in the Yugumbeh language, was registered as a trade mark by Commonwealth Games Federation for use in relation to the mascot for the 2018 Commonwealth Games. With many other major sporting events on the horizon, such as the 2026 Commonwealth Games in Victoria and the 2032 Olympic Games in Brisbane, it seems a pertinent time to analyse and revise the processes for the betterment of Australia and our Aboriginal people.
