Most Read Contributor in New Zealand, September 2016
Perhaps nothing speaks to our national identity more than the
sight and sound of the All Blacks performing Ka Mate
before pasting the Boks or the French.
But can a single person or organisation own the haka to the
exclusion of others? The question pitches intellectual property law
against the cultural rights and expectations of all New
This Brief Counsel puts the legal issues in context.
From 1998 to 2006, the mandated authority for Ngāti
Toa, Te Runānga O Toa Rangatira Inc, ran an unsuccessful
bid to win trade mark registration for the entire words of the
Ka Mate haka. That application failed because the New
Zealand Intellectual Property Office (IPONZ) held
that the words were in the public domain and could not be
monopolised as no one particular organisation could be identified
as the trade source of goods or services promoted in conjunction
with this haka. And that's the legal test.
If you want to trade mark words, colours, images, sounds or
smells, you have to demonstrate to IPONZ that what you say is a
"brand" is capable of distinguishing your activities from
those of others. IPONZ draws the line at things that should be free
for everyone to use in the course of their business.
But back to Ka Mate. While knocked over at first, the
Runanga tried again this year and has now won acceptance from IPONZ
for "KA MATE" and a logo featuring those iconic words. We
understand that the New Zealand Rugby Football Union and another
trading company have opposed the IPONZ decision in proceedings
pending before the Commissioner of Trade Marks.
What do we think? We're torn.
Te Rauparaha's Ka Mate haka celebrates life
over death; this haka is fundamentally important to Ngāti
Toa who understandably believe it deserves protection. For many
people, though, Ka Mate forms part of New
Zealand's cultural identity and should not be locked away
with its use policed by lawyers and their aggressive cease and
For our part, we are surprised IPONZ accepted KA MATE for
registration. From a trade mark perspective it's like the
words "kiwi" or "Aotearoa", or the shape of the
New Zealand coast line: words and images which no one can own.
We believe in a vibrant public domain where cultural experience
and expression is built by New Zealanders for New Zealanders.
On the other hand, we are proud that New Zealand law must
protect Māori traditional custom in the spirit of
partnership delineated by Te Tiriti o Waitangi which binds the
Crown. When it comes to that protection, the Trade Marks Act can
help. But the trade mark registration process is no use if words
like "Ka Mate" have fallen into the public domain.
Copyright can help too. Copyright protects artistic work like
tā moko and the words of new haka like Kapa o
Pango. Copyright also protects the performance and
communication of dance and other work in and to the public. But
copyright has its limits. While it lasts for the life of the author
plus 50 years, a lot of cultural property is much older than that.
And copyright protection requires identification of a precise
author: easy with a book; hard with a haka or story developed over
Do we need to change the law?
In the end, the law finds it hard to fit the square peg of
cultural rights in the round hole of intellectual property
That difficulty makes it important to ask whether or not New
Zealand needs a specific regime for the protection of
Māori cultural property; a "cultural property
register"? We could do that, but it would be risky.
Whenever the law creates new forms of property, there are
winners and losers. We would worry that cultural property rights
would unacceptably foreclose the public domain. While the status
quo isn't perfect, it strikes a manageable balance. With
the right advice, distinctive cultural property should be
protectable under New Zealand law but there will be grey areas
where IPONZ and the Courts will have to make judgement calls about
what belongs to individuals and what belongs to us all.
For further information, please contact Matt
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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