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Thursday, April 25, 2019
SCR204: OHA Insiders Exploit Aloha Poke Controversy to Grab Ownership of Hawaiian Culture for Themselves
By Andrew Walden @ 5:30 PM :: 2016 Views :: Ethics, OHA, Small Business

SCR204: OHA Insiders Exploit Aloha Poke Controversy to Grab Ownership of Hawaiian Culture for Themselves

Hawaii Eyes Keeping ‘Aloha’ From Trademarking Hands

by Julie St Louis, Court House News, April 25, 2019 (excerpted with commentary added to induce accuracy)

CHN: … Who owns Aloha? The Hawaii Legislature hopes to settle this question over the next three years with the help of a task force formed by the passage of a resolution Wednesday.

(Answer.  The plan is the feudal-minded Office of Hawaiian Affairs-OHA will own ‘Aloha’ and you will have to buy aloha from them.  Poke too.  And they are using this to grab control of ‘genetic’ resources as well.  In other words they want to tax biotech in Hawaii which means there won’t be any biotech research in Hawaii.  Keep reading.)

It surprised many, then, when in 2018 a Chicago company trademarked the name “Aloha Poke” and attempted to stop Native Hawaiian restaurateurs in Alaska and Hawaii from using the name for their businesses.

Tasha Kahele, the Alaska business owner, decided not to fight and spent thousands to change the name of her shop after receiving a cease-and-desist letter. Kahele said she was devastated but couldn’t afford the legal fees to fight it.

“This is not our first business, so I understand the copyright and the trademark, (No.  Sorry, you don’t understand.) which is why we are so torn,” Kahele said in an Alaska Public Media interview. “We knew that we’d have to comply, (WRONG) but this is kind of different. It was a word that they should never have been able to trademark or copyright, especially those two words together.”…  (They can’t copyright Aloha Poke under existing law.  That’s the whole point.)

In Honolulu, Aloha Poke Shop co-founder Jeff Sampson got his attorney involved, informing the Chicago company he wouldn’t change his restaurant name given the location of the Chicago stores on the United States mainland and his location in the islands. 

(Good point: Existing copyright law protects against the fatuous claims of the Chicago ‘Aloha Poke’ chain.  Too bad OHA sees money to be made here.)

Hawaii lawmakers also stepped into the fray with HI SCR204, a joint resolution first approved on the House side of Hawaii’s Legislature on April 22. While the plans for an intellectual property task force were already been in the works prior to the Aloha Poke trademark dispute, the dispute gave the issue the boost it needed to pass both chambers….

(OHA will own ‘Hawaiian’ intellectual property and you will have to pay them a tax to use it.)

The enacted resolution reads in part: “Whereas, disputes between indigenous peoples and third-party users of indigenous knowledge resources over ownership and control have steadily increased in the last five years; whereas, a non-Hawaiian food chain that originated in Chicago, Aloha Poke Co., issued cease-and-desist letters threatening small poke food businesses in Hawaii and across the nation from using the words “Aloha” and “Poke”, in essence claiming ownership of these cultural expressions….”

(Translation: OHA smells opportunity.)

The resolution acknowledges the western intellectual property system was developed to protect the rights of creators and inventors against plagiarism and to reward and encourage new inventions, not to protect the rights of indigenous peoples to their collective, traditional knowledge, cultural expressions and art forms.

(The resolution ignores the fact that the Chicago Aloha Poke claim has no chance because Aloha and Poke are too generic to be copyrighted by anyone—even OHA.)

“The laws of the state of Hawaii recognize the traditional customary rights of Native Hawaiians but do not expressly recognize and protect the collective intellectual property rights of the Native Hawaiian peoples,” the resolution states.

(Translation: OHA smells cash flow.)

Pointing to strategies undertaken by other indigenous people – including the federally funded U.S. Department of Interior Indian Arts and Crafts Board, registered trademarks by Maori artists in New Zealand and Alaska Native artists covering various tribes in that state – the resolution instructs a task force made up of state agencies and Native Hawaiian organizations to develop a legal system to “recognize and protect” Native Hawaiian cultural intellectual property, traditional cultural expressions and genetic resources. 

The task force must submit recommendations and any proposed legislation to lawmakers no later than 20 days prior to the 2022 regular legislative session.

“I know some people (copyright attorneys who know the Chicago claims are fatuous nonsense) are like, ‘It is just a generic word, everyone says it,’” Kahele said in the interview with Alaska Public Media. “But not to our people, it’s not. Aloha encompasses everything. We live aloha, we give it, we share it. It’s not to be restricted and I think that’s why it’s so triggering to people and it’s so offensive and it’s so hurtful. It’s hurtful – for our family it’s hurtful.”…

(It will soon be restricted to those who buy a license from OHA.)

read … Hawaii Eyes Keeping ‘Aloha’ From Trademarking Hands


Reality, for those who can handle it: Can Aloha Poke Be Trademarked? 

...“Chicago-based Aloha Poke Co.’s attempts to prevent other restaurants from using the name “Aloha Poke” has generated substantial controversy. Although there has been extensive discussion regarding whether Aloha Poke Co.’s actions are morally justified, there has been little, if any, serious analysis as to whether its position is legally valid.”

There are several grounds for prohibiting the company from obtaining trademark rights to “Aloha Poke.” One is a statutory provision, section 2(a) of the Lanham Act (the federal Act governing trademarks). Though rarely used, section 2(a) provides that matter that “falsely suggest[s] a connection with persons, living or dead, institutions, beliefs or national symbols” cannot be registered as a trademark.

Aloha Poke Co's attempt to trademark “Aloha Poke” violates this statute because it falsely implies the restaurant chain is connected with Hawaii and Hawaiians. The company’s intent to create such a false association is confirmed by its pervasive use of Hawaiian images and terminology in its restaurants and marketing, such as surfboards, surfers, leis, grass skirts, beaches, palm trees, and shakas, and terms such as “ono grinds,” “kahuna,” “luau” and “mahalo.”

The trademark’s use of “Aloha” in connection with “poke” is particularly deceptive because poke originated in Hawaii. Since Hawaii is the birthplace of poke, the name “Aloha Poke” creates the impression that its restaurants are connected to Hawaii and serves authentic Hawaiian-style poke. Neither is true. Of course, “Aloha” and “Hawaii” are not the same word. However, Hawaii’s legislature has recognized that the state’s official nickname is “The Aloha State.” In addition, the public knows that “Aloha” is a Hawaiian word, and associates it with Hawaii. Indeed, that is precisely why the executives chose “Aloha” for its name….

read … About How Copyright Can be Handled without Giving Power to OHA

ABA Journal: After 'aloha' restaurant dispute, Hawaii pushes to protect cultural intellectual property


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