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Wednesday, August 15, 2018
Aloha Poke: Activists See Opportunity to Grab 'Cultural Property' in Patents, Trademarks
By News Release @ 2:31 PM :: 1999 Views :: OHA

NATIVE HAWAIIAN CHAMBER OF COMMERCE UNIFIED WITH CULTURAL PROTECTORS WHO MARCH ON CHICAGO-BASED ALOHA POKE CO.

News Release from Native Hawaiian Chamber of Commerce August 13, 2018

Honolulu - The Native Hawaiian Chamber of Commerce stands in strong support of and in unity with all who seek to protect Native Hawaiian culture, values, and rights. More specifically, the Native Hawaiian Chamber proudly acknowledges and thanks the Hawaiian organizations, our allies from the Native American and broader communities, and the many individual and family protectors who, today, marched in protest on the Chicago-based Aloha Poke Co., and who confronted yet another example of flagrant cultural appropriation of all things Native Hawaiian. “We all have a right to prosper from the fruits of our labor, but no one has the right to steal what is not theirs,” said chamber President Joe Lapilio.

As a pro-business organization whose mission it is to connect and strengthen other businesses and professions, the Native Hawaiian Chamber understands the importance of lawful trademarks to business and industry, and acknowledges that we constantly encounter trademarks in our everyday lives. But, if trademarks are badges of origin, which identify and distinguish products or services of one source from those of another, then we call on the federal system of trademarks and patents to recognize that the ultimate origin of the words and/or concepts of aloha or poke is steeped in Olelo Hawaii – the traditional language of the First Nation’s people of Hawaii. And, as such, adequate measures should be in place to protect them.

Indeed, some of the organizational values which the Native Hawaiian Chamber holds dear, such as Ala Ka`ina - to show leadership and give guidance, Kekela - to excel and strive for the highest goal, Pono - to be morally righteous and fair, and Ho`oko - to fulfill and succeed, dictate that we, as modern-day Native Hawaiian business professionals, take this stand for what is right for both native peoples and our community at large.

While, at first glance, this heavy-handed trademark issue is narrowly focused on a single bad-actor, the Aloha Poke Co. of Chicago, we strongly believe that the greater issue is to be taken up with the United States Patent and Trademark Office and a system that has, for generations, inadequately addressed the commercialization and exploitation of Native Hawaiian traditional knowledge and culture. We believe that U.S trademark laws must do a better job of protecting native culture and promoting its appropriate use. “This company doesn’t understand how offensive and inappropriate its actions have been, but, the greater challenge is to reform the trademark and patent system to reflect that no one has the right to disenfranchise one’s culture,” said Ron Jarrett, the Chamber’s chairman of its Government Relations Committee.

Along these lines, the Native Hawaiian Chamber of Commerce, stands with the coalition of Native Hawaiians, who in 2003, adopted the Paoakalani Declaration - a powerful statement affirming the Native Hawaiian people’s collective right, as the creators of our traditional knowledge, to protect our cultural expressions from misuse by individuals who behave disrespectfully and inconsistently with our worldview, customs and traditions. Critically, the document declares the willingness on the part of Native Hawaiians to share our culture with humanity, provided that “we determine when, why, and how it is used.” The chamber calls to action all who agree with these tenets to work together to remedy the U.S. trademark and patent system so that it better serves and honors our country’s rich, proud, and oft times sad history of its native peoples. “We need to work together as stakeholders with our elected officials to make positive changes,” adds Jarrett.

While we leave the legal merits of the legitimacy and resulting enforcement of the Aloha Poke Co. trademark case to the legal professionals, we observe that the use of the words aloha and poke have been and are so wide spread - whether such use is alone or in combination – that it is improper to prohibit their use for the sole benefit of a single business entity (whose trademark only came into existence a mere couple of years ago). We also observe that unlike registered trademarks, common law, or unregistered, trademarks can exist and serve as the basis of an infringement action in the United States without ever being officially registered if in the case of another company first using the name at issue. The determinative factor with all common law trademarks being first use. The first person to use a trademark - not the first person to register it - has priority in a competition for ownership of the mark. We ask were there any businesses who preceded the Chicago-based company who used the words in question? If so, then they may have rights to the mark that supersede those of anyone holding a registered trademark.

Related to this, we also question whether in its examination of the Aloha Poke Co.’s trademark application, the U.S. Patent and Trademark Office adequately "published for opposition," and reached out to any possible existing users of the name so that they could file an "opposition proceeding" to prevent the mark from being registered. There are times when problems arise if, during the initial review or the publication stage, the U.S. Patent and Trademark Office finds that another business already uses a mark similar to the one applied for. If the similarity between the two marks is likely to cause consumer confusion, then the office should not register the applicant's trademark.

Legal observations aside, at the end of the day, trademark protection hinges on public perception. As business owners and professionals, the Native Hawaiian Chamber knows the importance of public perception in business. We call on all who cherish this country’s First Nations peoples and the notions of cultural integrity and fair play in the market place to boycott each and every retail location of the Chicago-based Aloha Poke Co. franchise and send a message to all who participate in the stream of commerce that cultural appropriation is not just morally wrong but is also economically untenable.

Founded in 1974, the Native Hawaiian Chamber of Commerce (NHCC) was formed to meet the needs of Native Hawaiians struggling to gain an equal footing with leaders in business at the time. The NHCC strives to encourage and promote the interests of Native Hawaiians engaged in business and professions. NHCC members participate in a variety of economic, social and public affairs. Our programs include monthly membership meetings and other events at which presenters share their knowledge and experience on topics that are important to Hawaiian businesses and professionals. The NHCC actively participates in government relations activities to be the voice of Native Hawaiian business and professions.

For more information, visit our website at www.nativehawaiianchamberofcommerce.org.

SA: Hawaiian chamber seeks reform of patent, trademark laws

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