In brief 2 min read
A pending trade mark application concerning the Indigenous term 'gumby gumby' highlights the controversies that arise at the intersection of intellectual property rights and Indigenous culture.
Gumby gumby means 'woman woman medicine' in the Indigenous Ghungalu language, and certain Indigenous people use it to refer to a native shrub in interior Australia (pictured). The leaves of the gumby gumby are used as part of traditional Indigenous bush medicines, and, in more recent times, have been used to create various medicinal and herbal remedies.
A trade mark application for 'gumby gumby' was filed in April 2017. This has raised concerns that, if granted, Indigenous peoples would not be able to use their own linguistic term for commercial purposes relating to gumby gumby products covered by the trade mark registration.
The 'gumby gumby' trade mark application has been under examination since filing, and the Trade Marks Office recently issued a notice signalling its intention to reject the application. One obvious issue with the application is that 'gumby gumby' would likely be descriptive of the actual goods, because trade mark law limits the extent to which one can commercially monopolise a word that is merely descriptive of goods and services.
Although this particular application may not be successful, there are broader issues that remain in the protection of Indigenous culture. The same applicants were successful in their 2016 trade mark application regarding a 'gumby gumby' logo featuring cupped hands holding a pile of leaves, for goods such as soaps, creams and teas; and also in a 2008 patent application relating to the production of gumby gumby leaf extracts and their use in medicine. Critics have noted the cultural insensitivity of commercialising an Indigenous phrase or cultural asset without permission from the relevant Indigenous community.
The 'gumby gumby' case study follows other recent events concerning the intersect of intellectual property rights with Indigenous culture – such as the issues concerning the licensing of the Aboriginal flag, and the misleading and deceptive conduct finding regarding inauthentic Indigenous-style products – and the use of an Indigenous-style artwork in a Ricky Gervais Netflix series.
IP Australia recently released a report regarding the protection of Indigenous Knowledge (IK) in the intellectual property system (see our IP Australia moves towards protecting Indigenous knowledge). That report proposed an Indigenous Advisory Panel for applications involving IK, following the example of the Maori advisory committees within New Zealand's IP system. While descriptive terms are not registrable generally, it can at times be difficult to show that a term is sufficiently descriptive where it is in a language other than English. The Trade Marks Act 1995 (Cth) does not currently specifically protect Indigenous knowledge or terms from being inappropriately registered as trade marks.
Also, currently before the Federal Parliament is the Fake Art Bill (which we assisted in drafting), that seeks to amend the Competition and Consumer Act 2019 (Cth) to make it an offence to supply commercial goods involving Indigenous cultural expression, unless in accordance with an arrangement with the relevant Indigenous artist or community. A Senate Committee report on the Bill is due on 26 March 2020.
These cases, and the proposed reforms, highlight the need for IP and other rights to be tools to protect Indigenous cultural assets and rights, rather than to undermine them.