When seeking to register a trade mark in New Zealand, applicants must be aware of specific legislative provisions designed to protect the cultural integrity of Māori, the indigenous people of Aotearoa. The Intellectual Property Office of New Zealand (IPONZ) operates under a framework that formally recognizes and respects Māori culture, creating unique considerations for brand owners.
The Legal and Cultural Foundation
The primary legal basis for this framework is found in Section 17 of the Trade Marks Act 2002. This section mandates that the Commissioner of Trade Marks must not register a trade mark if, in the Commissioner’s opinion, its registration or use would be likely to offend a significant section of the community, including Māori.
To apply this provision, the Act required the Commissioner to establish an advisory committee. This body, now known as the Māori Trade Marks Advisory Committee (“the Committee”), was established in 2003. Its function is to advise the Commissioner on whether the proposed use or registration of a trade mark is, or is likely to be, offensive to Māori.
This process is triggered whenever a trade mark application is assessed as being, or appearing to be, derivative of a Māori sign. A Māori sign is broadly defined as any trade mark that consists of or contains an element of Māori culture or appears to be derivative of such an element. This is not limited to imagery; it can include word marks, shape marks, sound marks, and any other type of trade mark.
Elements of Māori culture are sourced from a Māori world view, known as te ao Māori. This is an extensive category that includes, but is not limited to-
i. Māori words (kupu), proverbs (whakataukī), dialects, and naming conventions.
ii. The names of Māori whānau (family), hapū (sub-tribe), iwi (tribe), or marae (meeting grounds).
iii. History, cultural stories, songs, dance, protocols, and art forms (Toi Māori) such as carving (whakairo), weaving (raranga), and traditional tattoo (moko and tā moko).
iv. Te Reo Māori (the Māori language), landmarks, genealogical information (whakapapa), and taonga species, i.e. the native flora and fauna of New Zealand.
v. Mātauranga, or the body of Māori knowledge.
While using such elements in a brand can be a unique way of indicating a connection to New Zealand, it must be done with sensitivity and respect. Using these elements without a proper understanding of their cultural context risks causing inadvertent, but significant, offense.
Māori Concepts
To navigate this landscape, applicants must first understand the fundamental conflict between Western intellectual property law and Māori cultural perspectives. The Trade Marks Act grants an individual, exclusive right to own and use a mark. This concept of individual ownership is often fundamentally inconsistent with Māori world views, which are based on collective ownership, shared responsibilities, and guardianship (kaitiakitanga).
Mātauranga (Māori Knowledge)
Mātauranga is a broad term for the body of traditional and evolving Māori knowledge, values, and practices passed down through generations. It is considered a taonga (treasure). This knowledge carries a collective responsibility to be used in accordance with tikanga (cultural protocols), ensuring the taonga is honored and its source acknowledged. Māori believe they are intrinsically connected to their creations, and this connection cannot be severed, even if the work is shared or assigned.
Mauri and Kaitiakitanga
Māori values are often aligned with origin stories, such as the relationship between Ranginui (the sky father) and Papatūānuku (the earth mother). From them descend all living things, which share a sacred origin and a life principle known as mauri. Actions that disrespect or undermine mauri may be seen as offensive. Māori feel an obligation to act as kaitiaki (guardians or custodians) of mauri. This is not limited to animate objects; a waterway or a mountain also possesses mauri.
Tapu and Noa
Perhaps the most complex but essential concepts for a trade mark applicant to understand are tapu and noa. Tapu is described as the strongest force in Māori life. It can be interpreted as “sacred” or as a “spiritual restriction” or “prohibition”. A person, place, or object that is tapu may not be touched or, in some cases, even approached. Noa is the opposite of tapu; it means “common” or “unrestricted”. An act of noa can lift the rules and restrictions of tapu.
Offense is often caused when these two concepts are inappropriately mixed. The guidelines provide a clear example: a rangatira (chief) or a whakairo (sacred carving) is considered tapu. Conversely, items like food or cigarettes are considered noa. To associate something profoundly tapu, like a chief’s image, with a common (noa) item, like a food product, signifies an attempt to lift the tapu of the chief. This act of diminishing the sacred status is what causes offense.
This principle is visualized in the guidelines with a Tapu/Noa Principle diagram. It plots Māori elements (from noa to tapu) on one axis and the goods/services (from noa to tapu) on the other. The combination of a tapu element with noa goods/services falls squarely in the “Offensive” category. For example, the name of a deity (atua) like Papatūānuku (tapu) used for a bakery (noa goods) would likely be found offensive .
The Examination Process for Māori Trade Marks
When an application is filed, it follows a specific process if it is identified as a Māori sign.
All trade mark applications received by IPONZ are assessed to determine if the mark is, or appears to be, derivative of a Māori sign. This assessment is applied to all applicants equally, regardless of their cultural background. If the mark meets this criterion, IPONZ sends the application to the Māori Trade Marks Advisory Committee for consideration. For national applications, the applicant will be advised that this referral has taken place.
The Committee, which is composed of members with deep expertise in mātauranga and tikanga Māori, considers the application on a case-by-case basis. They use a voting system and hold quarterly meetings to discuss more controversial applications, ultimately communicating their advice to IPONZ. An IPONZ examiner will conduct a full examination of the application, taking the Committee’s advice into account. While the Commissioner is not legally required to follow the Committee’s advice, the examination team’s usual practice is to follow the Committee’s advice in relation to section 17(1)(c) objections.
If the examiner raises an objection that the mark is likely to offend Māori, this will be communicated to the applicant in a report. The applicant is then given the opportunity to respond to the objection. The examiner will reassess the objection in light of the applicant’s response. If the examiner is unsure whether the response overcomes the objection, the application may be referred back to the Committee for further advice.
There is no additional charge for an application to be referred to and reviewed by the Committee.
Adopting a Mark and Engaging with Māori
While not a statutory requirement, seeking specialist advice or engaging with Māori is “highly recommended” to avoid inadvertently causing offense.
This engagement helps ensure that any current or future use of the Māori elements is culturally appropriate, especially in the context of the specific goods or services for which the mark will be used.
Forms of engagement may include consulting a Māori Artist or Designer: If the mark involves Māori artwork or designs, commissioning an artist who is familiar with tikanga is the best way to ensure the result is respectful. Engaging a Māori Language or Cultural Expert can also be important for marks involving Māori words or designs, an expert can help ensure the use is consistent with traditional culture. That said, engaging with Iwi, Hapū, or Whānau: For marks that have a specific connection to a particular group or region (such as a place name), engaging directly with the relevant iwi or hapū (the guardians of that taonga) is appropriate.
Effective engagement requires discussing the specific details of the mark, the background of its adoption, and the full list of goods and services. The ideal outcome is receiving permission to use the element or, at minimum, confirmation that the proposed use is unlikely to be offensive.
To assist applicants, IPONZ and the Committee have developed the Aratohu Mātauranga Checklist. This is an entirely voluntary and optional tool that guides applicants through a series of questions about their mark’s selection, meaning, origin, and any consultation undertaken. It is designed to help applicants “think through possible issues” before filing.
Specific Areas of Risk and Potential Offense
The Committee provides specific guidance on what types of marks are likely to be considered offensive.
i. The Māori language and its associated tikanga cannot be separated. Words are assessed in their full cultural context, including their whakapapa (origin). Applicants must be careful with macrons or double vowels, as their incorrect use can change a word’s meaning and potentially cause offense. Phonetic spellings (for example, “FAKAPAPA” for whakapapa) are treated as kupu Māori and may also be considered offensive.
ii. A Māori word may have a simple English translation that masks a deeper cultural significance. The word ‘kuia’ translates as ‘grandmother’, but in Māoridom, it is a name of great respect, recognizing wisdom and achievement. ‘Kuia’ is therefore tapu, and using it on noa goods, such as food or alcohol, would be considered offensive.
iii. Māori geographical place names, such as mountains, rivers, or lakes, have special significance to the iwi of that region and may be regarded as tapu. Using such names (or images of them) without consultation and permission from the relevant iwi may be offensive. This is especially true if the name is used on services like burial, gambling, alcohol, or tobacco products.
iv. A trade mark that refers to a wāhi tapu (a place of traditional, spiritual, or mythological significance) is highly likely to offend. In these cases, even consultation may not be enough to overcome the objection.
v. These names are considered tapu due to their association with collective ancestry. A mark that includes the name of an atua or tūpuna (such as Ranginui or Papatūānuku) is very likely to have an objection raised.
vi. Registration of a taonga (name or representation) may require consultation and permission. A mark that consists solely of the name of a taonga species (like ‘kiwi’ or ‘kawakawa’) is likely to be considered offensive. This is because it conflicts with Māori views of collective ownership, and there is no single authority who can grant consent for such a culturally significant name. For example, the mark KAWAKAWA (a taonga species) for ‘electronic cigarettes’ (a noa and inappropriate product) would likely be found offensive.
vii. Some taonga are protected by specific legislation or have recognized guardians. Using them requires consultation with a specific group-
a. Haka Ka Mate: Requires permission from Ngati Toa.
b. Pounamu (Greenstone): Requires permission from Te Rūnanga o Ngāi Tahu.
c. Te Awa Tupua (Whanganui River): Requires permission from Te Pou Tupua.
d. Parihaka: Requires permission from the Parihaka Papakāinga Trust.
viii. Traditional designs communicate stories and have deep significance. Using them in an inappropriate context (for example, using kowhaiwhai patterns from a sacred wharenui (meeting house) on underwear) is likely to be considered offensive.
ix. A word from another language that is also a Māori word (like the vernacular ‘mate’) will be assessed from the Māori perspective (where ‘mate’ is associated with death). Similarly, a design common to other cultures (like a spiral) will be interpreted as a koru (a Māori spiral) when assessing offense.
Overcoming Objections and Final Considerations
If a section 17(1)(c) objection is raised, it may be possible to overcome it. This can sometimes be achieved through successful consultation with Māori that results in permission being granted or confirmation of no offense. In other cases, the objection may be overcome by amending the specification of goods and services, for example, by deleting the noa (common) goods from an application for a tapu (sacred) mark.
However, applicants should not refer to previous registrations of marks with Māori elements as guidance for what is acceptable. Māori perspectives are dynamic, and societal standards change. A mark that was not considered offensive in the past may well be considered offensive today. All new applications are referred to the Committee for a fresh assessment.
That said, applicants should be aware that even if the Commissioner accepts a trade mark for registration, this does not prevent interested parties, including Māori entities, from opposing the registration on the grounds that its use or registration is likely to offend Māori. This highlights the divergent views that can exist and reinforces the value of undertaking respectful and thorough engagement before filing an application.
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