Protecting Our Culture: Intellectual Property Rights versus Cultural Appropriation

Trinidad and Tobago Twitter, with much support from persons from the Caribbean and in the Caribbean Diaspora, was ablaze from June 20, 2021 following the discovery that American actor Michael B. Jordan and business Partner Scott Williams (who social media has identified as having Trinidadian roots) recently launched “J’ouvert Rum”.

An examination of the trademark online shows 1.) that the trademark which is registered with the United States Patent and Trademark Office (USPTO) (as of June 1, 2021) represents “Alcoholic beverages, except beer, distilled spirits, rum-based beverages and rum” and 2.) the description of the word is stated as having “…no meaning in a foreign language.” Further, based on the photographs of the inside cover of the PR box (as seen on Twitter) the product is described as “…the Antillean Creole French term meaning “daybreak”, J’OUVERT originated in the pre-dawn streets of Trinidad, as celebrations of emancipation combined with Carnival season to serve as the festival’s informal commencement. Crafted on those same islands, J’OUVERT Rum is a tribute to the “party start”. Above the description is a misshapen image of Trinidad in orange and two additional unidentifiable images in blue and green (it is not clear whether one of them is to represent Tobago).

Much of the ire coming from those from Trinidad and Tobago is based on a few key points. The first is the fact that a famous person who was not born in the Caribbean or as far as is known, does not have Caribbean roots nor has even visited Trinidad and Tobago nor participated in its Carnival, teamed up with someone who we are told has Caribbean roots but lives in the USA, to create a product which is named after a culturally significant event in Trinidad and Tobago. It is thought by some that this may lead consumers to believe that the Carnival event was named after the rum and not the other way around. The second point is that the trademark registration details state that the word has no meaning in a foreign language (although the boxed set referenced above attempts to do so) and the third is that in general the small countries of the Caribbean seem to be particularly susceptible to cultural appropriation from those in larger countries.

The most important point which arises from this issue however, is that we need to understand and be fully aware of our rights in the intellectual property space. Given how connected the world is today, Caribbean business persons, governments and cultural practitioners need to guard their intellectual property rights fiercely, especially in seeking to protect their creations or elements of what is important to a country’s identity.

It is also important to understand what is the most appropriate method of protection and how the systems work, so as not to conflate issues of intellectual property rights with discussions about cultural appropriation. For example, having reviewed the USPTO for the trademark, “J’OUVERT”, there are five (5) trademarks with that name on the list, three (3) of which are no longer valid and two (2) of which are “live”. Apart from the trademark registered for alcoholic beverages, there is another one owned by a business in California with the same name but the trademark represents audio and video recordings, digital media, etc. There was also a trademark which was registered as “Red Antz Miami Jouvert” for “Entertainment services in the nature of organizing social entertainment events; Organization of events for cultural purposes; Organization of dancing events; Organizing community sporting and cultural events; Organizing cultural and arts events.” but that trademark was abandoned in 2018 in the same year that application was filed.

This leads us to the question, what is a trademark and what protection does it offer? According to the World Intellectual Property Organization (WIPO), “A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises” (e.g. “Coca-Cola” or “Mercedes-Benz”) . It is also extremely important to note that trademarks are territorial, they are registered in what are called “Classes” and they are only valid for a specific number of years. Therefore, barring any treaties signed among countries which may alter this process, in order for a business to protect its brand in another country, it has to register the trademark in that country. Also, if a trademark is registered in a particular Class (e.g. alcoholic beverages) there is nothing to stop another business from registering the same name to represent another product (e.g. air fresheners, as this has been done before under the name “J’ouvert” with the USPTO). Finally, the validity of a trademark, i.e., its “life” lasts for a specific period of time (e.g. in Barbados, it is 10 years), after which, unless it is renewed, it can be used by another brand.

Another form of intellectual property protection which may be of interest is a geographical indication. According to WIPO, a “geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production”. (WIPO)

“A GI right enables those who have the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. However, a protected GI does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a GI is usually obtained by acquiring a right over the sign that constitutes the indication. Additionally, geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products”. (WIPO) Examples of well-known GIs are Mexico’s “Tequila” and France’s “Roquefort Cheese” and “Champagne”.

“GI’s therefore function as product differentiators on the market, by enabling consumers to distinguish between products with geographical origin-based characteristics and others without those characteristics. Geographical indications can thus be a key element in developing collective brands for quality-bound-to-origin products”.

Finally, a person or business can also register a patent, which is “an exclusive right granted for an invention, a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem” (WIPO) or they can copyright a Work which allows creators to have “rights over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings”. (WIPO)

It is therefore imperative that 1.) before entering into any business venture, the business owner must explore all avenues into protecting his or her intellectual property in as many markets as required and to ensure that all registrations are renewed at the required time so that valuable goodwill is not lost and 2.) governments and state-owned cultural entities must look into protecting what is deemed to be culturally significant. If protection is possible, by all means, take the steps to do so. It is also a good way to boost the morale of citizens.

On the issue of cultural appropriation, which is defined as the “unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society.” (Oxford) it can be argued that misrepresenting, telling half of the story or ignoring the significance of the origins of your product to another person’s culture is detrimental to that person’s very identity or it allows for profit off of years of someone else’s work by someone who is of a different background. Those arguments are valid and cannot be ignored. However, it may also be argued that if the platform exists legally for a person to protect the intellectual property aspect of their business they should go right ahead.

What this entire experience ultimately shows however, is that as Caribbean people, we absolutely need to protect our culture as much as the law permits as no one will do it for us. Our ability to guard our heritage and of course, use it for financial gain rests entirely on our shoulders, let us do our best to do so.

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