A Chicago poke restaurant unleashed a backlash last month when it sent letters threatening to sue other poke joints for using the word “Aloha” in their names. And more protests are planned for next week in Chicago.
But the controversial Windy City fishmonger, Aloha Poke Co., is hardly the only mainland firm that’s staked a legal claim for exclusive use of the traditional Hawaiian greeting.
Browse the U.S. Patent and Trademark office’s database, and you’ll find Aloha Glamour apparel in Gulfport, Miss.; You Had Me At Aloha clothing in L.A., and Aloha Mini-Golf in Myrtle Beach, S.C. There’s also Kinky Aloha booze sold out of Mendota Heights, Minn.
In fact, there are more than 1,000 trademarks registered using the term “aloha” according to the trademark office. And while many of these trademarks are no longer active and others are actually owned by Hawaii companies, many of them are owned by mainland firms.
John Gregory Baker, an intellectual property lawyer in Plano, Texas, doesn’t see a problem with any of this. In fact, Baker owns the trademark “Aloha Patent Law,” along with the phrase, “Surfing the waves of patent prosecution and patent litigation.”
Baker doesn’t have much sympathy if some Native Hawaiians view claiming the word “aloha” as cultural misappropriation.
“I think, ‘too bad guys.’ I’m sorry they didn’t have the aloha spirit of the islands to think of this themselves,” he said in a phone interview. “I don’t think some alleged natives of Hawaii have any more rights to this than anyone else. This is the United States of America.”
Not everyone agrees. The Aloha Poke Co. controversy actually touches on a broader issue that Native Hawaiian cultural practitioners, lawyers and activists have been studying for years: How to protect Native Hawaiian intellectual property.
In 2003, in part as a response to attempts by multinational biotechnology companies to patent life forms, the Native Hawaiian Intellectual Property Rights Conference was held in Waikiki.
“The creative cultural expressions of Kanaka Maoli are being stolen and commercialized for the advertising of commercial products and for the sale of our lands and natural resources in total disregard for and in derogation of our rights as creators of these artistic cultural expressions,” the declaration says.
Among other things, it calls for creating a framework for protecting Hawaiian intellectual property, including legal reforms.
Four years later, in 2007, the United Nations General Assembly came out with the United Nations Declaration on the Rights of Indigenous Peoples. The sweeping document says that native peoples “have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions,” including the right to develop intellectual property rights over such expressions.
The problem is the U.S. law hasn’t done much to adopt such principles as it relates to intellectual property and Native Hawaiians, said Martin Hsia, a Honolulu attorney who has done trademark work for local brands Tori Richard, Zippy’s Restaurants and Town & Country Surf Shop.
Intellectual property falls generally into three broad categories: patent law protects physical inventions, while copyright covers creative works of art, music and writing, including computer software. Trademarks, meanwhile, are meant primarily to show the origin of a good or service, Hsia said, but they also have advertising value.
Native Hawaiian artworks could be covered by copyright law, Hsia said, although they eventually fall into the public domain like other works of art. And he said trademark law could help prevent a counterfeiter from falsely claiming an item came from an indigenous artisan.
But Hsia said there’s generally nothing currently in U.S. trademark law preventing misappropriation of the Hawaiian language.
To Kuhio Lewis, chief executive of the Council for Native Hawaiian Advancement, the situation is especially troubling when it comes to companies like Aloha Poke Co. trademarking the word “aloha.”
“The word ‘aloha’ is something we’ve shared with the world,” he said. “And in this case, this company is trying to take the word away from us.”
Lanialoha Lee, executive director of Aloha Center Chicago, is hoping to muster a few hundred Native Hawaiian folks to protest outside Aloha Poke Co. in Chicago on Monday. She wants to make sure the company doesn’t send out any more threatening letters, she said.
“But we also would like them to cease and desist from using the name Aloha and Aloha Poke,” she said.
Aloha Poke could not be reached for comment.
Meanwhile, the Honolulu attorney Hsia said there is something Hawaii companies can do to prevent mainland firms from using Hawaiian words in trademarks. The Hawaii companies should register their trademarks before someone else does.
“The people who are making money on Hawaii as a brand are not Hawaii companies, because Hawaii companies do not protect their brands nationwide,” Hsia said. “Everybody’s making money off Hawaii except Hawaii companies.”
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