Cultural appropriation—the unacknowledged and inappropriate adoption of the customs, practices, ideas, etc. of one society by members of another, more dominant, society—is not a new concern facing trademark-seekers. As a trademark is meant to convey values to the consumer, marginalized groups have always taken issue with the use of their own cultural values, ethos, and expression as a signifier for a product not associated with them.
Concern and media backlash for culturally appropriative trademarks has sparked recently for two major reasons: the revamping of concern for Disney trademark HAKUNA MATATA and the Supreme Court ruling that negated the “immoral and scandalous” trademark laws.
Let’s start with Disney. Walt Disney has owned a U.S. Trademark for HAKUNA MATATA, a Swahili phrases that means “no trouble” or “no worries,” since 1994. However, due to the announcement of the live-action version of “The Lion King,” released on July 19—and generally larger generational concern with cultural appropriation—an online petition started earlier this year. The petition, with 194,111 signatures at the time of writing, argues that the Disney corporation should not be allowed to trademark something it did not invent. Whether or not that is legally true (we will get to that in a minute) outrage over large corporations profiting from the cultures of people in less powerful positions often leads to reputational brand damage and lower profits.
In the United States, there have been several examples of indigenous cultures fighting corporations to protect their intellectual and cultural property. However, in these cases, the indigenous groups actually own the trademark on certain phrases and goods. For example, the Navajo Nation, in 2016, made a legal agreement with Urban Outfitters to work together and market authentic Navajo goods. The Urban Outfitters corporation had been previously selling ‘Navajo hipster panties’ and ‘printed flasks’ in violation of the Navajo Nations’ 86 registered trademarks. The company had also violated the Indian Arts and Crafts Act, which makes it illegal to pass off goods that falsely suggest connection to Native American tribes.
HAKUNA MATATA is not legally the intellectual property of any East African corporation or IP firm, so it would be significantly harder to argue infringement on Disney’s part. Legal experts also argue that the Disney trademark is necessary to protect from other organizations falsely suggesting connection to Disney with “Lion King” merchandise and profiting from this confusion of source.
Further, it is not necessary for a corporation or individual to create a term to be able to register it as a trademark; unlike copyrighted works, a trademark is protected even when not an original work. The protectiveness of a trademark is instead dependent on the distinctiveness of the mark to identify the source of the product or service. Since generic trademarks cannot be protected, HAKUNA MATATA, would not likely be a protectable trademark phrase in any East African country, but in the United States the public does not perceive the mark as a common expression, so it can be trademark protected.
However legal the process may be, consumers still consider it cultural appropriation. So, the question becomes: how can we regulate this process in trademarks, if we can? Until recently, a party might have petitioned the Trademark Trial and Appeal Board (TTAB) to cancel the HAKUNA MATATA mark under Section 2(a) of the Lanham Act, which prohibited registration of “immoral, scandalous, and disparaging marks.” The party would only have to convince the TTAB of cultural appropriation and subsequent offensiveness. However, the Supreme Court recently overturned this law, suggesting it overrode a corporation’s right to free speech, since the “immorality” phrasing “disfavors certain ideas” it is in violation of First Amendment rights.
Although legal solutions seem unlikely at this time, Cathy Mputhia suggested that “relevant governments or communities [could] apply for expungement of already granted trademarks, [but] there are certain thresholds that ought to be met for expungement of marks that contain heritage.” Especially with the nullification of the “immoral” section of the Lanham Act, the thresholds Mputhia suggests will probably not be legal, but societal. The decision on Disney’s part to let lapse the trademark registration for HAKUNA MATATA will be a business decision designed to protect the company’s public image. With a large corporation like Disney, brand image is well established, but no one wants to alienate an entire sector of consumers. Disney, and not the legal system, would have to acknowledge that the trademark hurts too many East African groups of people to continue its use.