Strong Brand, Strong Culture: The importance of Trade Marks for Indigenous business
Updated: Apr 11, 2021
What is a trade mark?
A trade mark can be your most valuable marketing tool. Sometimes called a brand, your trade mark is your identity - the way you show your customers who you are. A registered trade mark protects your brand and distinguishes your business, products and services from others, allowing you to stand out and gain that competitive edge. Words and logos are the most common forms of trade marks, but there are many more such as a jingle, a scent or a colour.
Why are trade marks important for Indigenous businesses?
Trade marks are important for Aboriginal and Torres Strait Islander businesses and organisations because they protect and establish your brand in your relevant industry. They add economic value and even grow in value as your business grows. Trade marks can also help you to promote the cultural authority and authenticity of your products and services, and encourage consumers to choose Indigenous owned businesses and products. This is especially important when Aboriginal and Torres Strait Islander businesses are using language words and cultural expressions in their organisation’s names, logos and program titles.
Why the current trade mark system is inadequate for the protection of Indigenous cultural expressions
Currently, the Trade Marks Act 1995 (Cth) in Australia does not adequately protect Indigenous cultural expressions (language words, symbols, images and designs) from unauthorised use. Legally, Indigenous words can be trade marked without the need for consultation and consent from Indigenous people. The commercialisation of Indigenous words can harm culture and undermine economic opportunities that are available for Indigenous people. IP Australia is looking into how to address this, but progress has been slow. (For more on this, read the IP Australia discussion paper, Indigenous Knowledge: Issues for protection and management) and see IP Australia's Indigenous Knowledge Project)
What can be done to appropriately address the trade mark conundrum?
Urgent reform of the Trade Mark Act 1995 (Cth) is needed to protect Indigenous cultural expressions in the trade mark system and prevent unauthorised use. For example, an Indigenous advisory body concerned with the use of Indigenous cultural expressions in trade mark applications could help to prevent some of the issues. In Aotearoa (New Zealand), there is a Maori Trade Mark Advisory Committee that advises the Trade Mark office on trade marks that are offensive to Maori, which can be rejected under the NZ Trade Mark Act.
In the meantime, Aboriginal and Torres Strait Islander businesses and organisation can protect their business name, logos and program titles through trade mark registration. This helps build a strong reputation in their brand but also enables them to allow others to use their programs under licence.
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