USE OF CULTURAL TRADEMARK TO PROTECT NATIVE HAWAIIAN ARTS

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. 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. 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 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 DIVISIVENESSOF 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 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 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 ONNATIVE 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 17339Honolulu, HI 96817 USA Tel: (808) 783-2786