The semi-nomadic people of Kenya and north Tanzania, the Maasai, have had their iconic cultural brand exploited by companies across the world, for products ranging from cars, to shoes and even wine. They are now working to protect and take control of their brand and in doing so aim to generate a valuable source of income all Maasai people, 80% of whom currently live below poverty levels.
A new organisation, the Maasai Intellectual Property Initiative was founded and is supported by Light Years IP, an NGO which specialises in assisting developing countries to gain ownership of their IP. Ron Layton, founder and head of Light Years IP has argued that "the Maasai brand is one of the most used cultural brands in the world" and estimated that it could be worth tens of millions of dollars each year.
To quote the Maasai Intellectual Property Initiative, they "are working to obtain licenses from companies who currently use our Intellectual Property. We are also working on Trademark rights, and building Authenticity for the Maasai Mamas to return more income through Direct trade."
It is not yet certain if the Maasai will pursue IP protection and elders are currently travelling around Maasai areas to ensure that the whole community is in support of the initiative. If the Maasai do decide to seek IP rights, they plan to create a General Assembly of Maasai elders who would be trained in IP and would act as a legal body to negotiate with companies on licensing and use of the Maasai's IP. It is proposed that this would be underpinned by a constitution setting out how income generated would be distributed and used.
The question should be asked, however: just how could intellectual property rights be used to protect the Maasai's image? There are currently no intellectual property rights which specifically protect the cultural identity of an ethnic or national group equivalent to protected designations of origin, which protect the names of agricultural products and foodstuffs originating from a specific region (such as Melton Mowbray pies).
This leaves the Maasai with the option only of registering their name as a trade mark, but this faces the following difficulties, at least in the UK and the EU:
- Who would apply on behalf of the Maasai people to register their name as a trade mark? They do not collectively constitute a legal entity capable of owning a trade mark, and this would need to be addressed.
- Other traders have already registered UK and Community trade marks consisting of, or incorporating the words "Maasai" and "Masai". Any application on behalf of the Maasai people to register their name as a trade mark may be opposed by one or more of the owners of these trade marks.
- An application to register the Maasai name (which is geographically distinct) may be refused (at least in the UK and EU) as being deceptive as to the geographical origin of the goods or services, however, this does not seem to have prevented the existing registrations referred to above.
- For the Maasai people to ensure they have an absolute worldwide monopoly in their name, they would have to register it in every jurisdiction all 45 classes for all goods and services. Even if this were achievable, it would be prohibitively expensive.
- Trade marks are (or should be) registered for the goods and services for which they are or will be used. Some countries (such as the USA) have very stringent use requirements and most provide for revocation of trade mark registrations where no genuine use is made of these for a period after registration (typically 3 or 5 years). This could make it difficult for the Maasai to maintain their registrations for all goods and services to the extent they have not been used by, or with the license of, the Maasai entity owning the marks.
Absent an international treaty allowing indigenous or ethnic groups to secure a monopoly in the use of their name (something which is likely to be difficult to negotiate and agree), the Maasai are left with no practical option but to apply pressure (including by "naming and shaming" ) to commercial users of their name, with a view to persuading them to sign up to a voluntary code and to pay royalties for their use, hoping that this creates an industry norm.
So far the Maasai Intellectual Property Initiative engages in lobbying and letter writing where they have found use of their images offensive. Just how far they decide to go in trying to protect their cultural brand from exploitation, and what success they achieve, remains to be seen.