September 11, 2019

Kia ora! (Yes we can still say that)

Frequent flyers on our national airline will no doubt have perused the Air New Zealand in-flight magazine Kia Ora. However, Air New Zealand sparked outcry online yesterday when it emerged that back in May the airline sought to register as a trade mark a logo design of the Maori greeting Kia Ora.

This event raises valid concerns about the commodification of Maori words and imagery by non-Maori commercial entities, particularly given that te reo Maori is a taonga. New Zealand intellectual property law has never done a good job of protecting and providing for indigenous rights.

But there is also widespread misunderstanding about what the effect of such a trade mark registration would be.

It is worth noting at the outset that where a trade mark is applied for that includes elements related to Maori culture, the application is referred to the Maori Trade Marks Advisory Committee who advise the Intellectual Property Office whether the proposed use or registration of that trade mark is, or is likely to be, offensive to Maori. There are already a number of existing trade marks for Kia Ora which have not been deemed to be offensive (including two others that are currently being reviewed by the Office). So this will not hold up the registration of the Kia Ora trade mark. The Office does not have the power to reject the application on the basis that it's inappropriate for a non-Maori organisation to register the words.

A trade mark is way to distinguish the goods and services of a trader from others in the marketplace.

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So, what effect would Air New Zealand's Kia Ora trade mark have if it succeeds in obtaining a registration?

A trade mark is way to distinguish the goods and services of a trader from others in the marketplace. A trade mark can be a word, a sign, a colour or even a smell. But a registered trade mark does not give the owner of that mark the ability to stop all others from using it. Registered trade marks are filed in respect of specific goods or services. The owner of the trade mark then has the exclusive right to use the mark in relation to those particular goods or services in the market. In this case, Air New Zealand has sought to register their trade mark in respect of magazines and various publications.

Importantly, this means two things:

  • Others (including the general public) are not stopped from using the term Kia Ora in general use outside of trade despite one commonly held belief, no one would be required to pay a royalty to Air New Zealand every time they greet a friend; and
  • It doesn't stop others from using the term Kia Ora as a brand in relation to other goods and services that are not magazines and various publications (or things similar to those).

Air New Zealand has stated that it is not seeking to register the words Kia Ora on their own but rather a logo that features the greeting. While it is true that use in relation to a logo can be less exclusive than the words on their own, the logo in this case is not particularly distinctive and is essentially just the words Kia Ora in block letters. This would give Air New Zealand protection for more than just use of the logo and it would have a chilling effect on any use of Kia Ora in relation to magazines and publications.

Even without a registered trade mark for Kia Ora, Air New Zealand would likely still be able to restrict others from using the term in relation to magazines and publications under the Fair Trading Act or under the common law concept of "passing off". Under these laws, other traders cannot use the term if it caused people to be misled or deceived into thinking the goods or services were provided by Air New Zealand. This means that if Air New Zealand withdraws the application in response to the negative publicity it has received, others are still unlikely to want to take the risk of using Kia Ora as a brand in relation to any kind of magazine or publication, as Air New Zealand could still legally object to that use.

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