4.2 Likely to offend MaoriUp one level
Section 17(1)(c) expressly regards Māori as a “significant section of the community”.
IPONZ has been concerned about the appropriate use of Māori words and imagery in trade marks for some time. Where an application was filed under the Trade Marks Act 1953, and where IPONZ had concerns that the use of Māori words or imagery in the trade mark was offensive, concerns were raised on the grounds that the mark consisted of or contained “scandalous matter” or “matter the use of which would be contrary to morality”. 46
Section 17(1)(c) of the Act supports the approach that IPONZ has previously adopted by making specific reference to the need to consider whether the use or registration of a mark would be likely to offend Māori.
Where an application is filed to register a trade mark that is, or that appears to be, derivative of a Māori sign, 47 the application will be referred to the advisory committee established under section 177 of the Act. If the committee advises the Commissioner that the application contains matter that is likely to be offensive to Māori, it is likely that IPONZ will raise concerns that the mark is not registrable under section 17(1)(c) of the Act.
The following are examples of marks that contain Māori imagery that may have been acceptable for registration at one time, but would be unlikely to be acceptable today.
|Goods: "butter" (1893)||Goods: "ale and stour" (1914)
| Goods: “Worcester sauce,
pickles and chutney” (1927)
|Goods: “cigarettes” (1931)|
Māori attribute spiritual and cultural significance to certain words, images and locations. It is necessary to have some understanding of Māori culture and protocols to avoid offence. This includes, for example, an understanding of tapu and noa, perhaps some of the most complex of Māori concepts to understand.
“Tapu” is the strongest force in Māori life. It has numerous meanings and references. Tapu can be interpreted as "sacred", or defined as "spiritual restriction" or "implied prohibition", containing a strong imposition of rules and prohibitions. A person, object or place, which is tapu, may not be touched or come into human contact. In some cases, not even approached.
“Noa”, on the other hand, is the opposite of tapu and includes the concept of common; it lifts the "tapu" from the person or the object. Noa also has the concept of a blessing in that it can lift the rules and restrictions of tapu.
Māori consider “rangatira (chief)” and “whakairo (carving)” to be tapu and “food” or “cigarettes” to be noa. Therefore the association of the chief and carving devices (above) in relation to the specified goods, namely “Worcester sauce, pickles and chutney”, “butter”, “cigarettes” and “ale and stout” may be considered culturally offensive and inappropriate to a significant number of Māori. That is, to associate something that is extremely tapu with something that is noa signifies an attempt to lift the tapu of the rangatira and whakairo – and therefore appears offensive.
46 See section 16(1) of the Trade Marks Act 1953.
47 See section 178 of the Act.