Protecting The Wandjina

‘Wandjina’ (also called ‘wanjina’ or ounjina’) are the sacred creation spirits and source of cultural law for the Worrora, Wunumbal and Ngarinyin Aboriginal peoples of the Kimberley. The Wandjina established the laws of life, marriage, kinship and obligation to country. They have been artistically depicted in a unique and distinctive form by those language groups for thousands of years, first in rock paintings and now on canvases as a contemporary art form.

Anthropologist Valda Blundell writes: “Depicting the Wanjina in their contemporary art is a significant way in which Wanjina-Wunggurr people educate their children and grand-children regarding their cultural beliefs, their individual and group identities, and their connections to country. It is, moreover, a way for Wanjina-Wunggurr people to convey to the outside world that Wanjina-Wunggurr society is distinct, strong and enduring..”[1]

In recent years, the intersection of contemporary culture, the commercial art market, and the world’s fascination with the traditions of its oldest living culture has lead inexorably to a dilution of respect for that culture by those who would appropriate it for their own commercial purposes. In this article we examine how Arts Law collaborated with a major law firm and the Worrora, Wunumbal and Ngarinyin Aboriginal peoples of the Kimberley to secure a new form of legal protection for traditional Indigenous culture.

Wandjina in Lejmorro © Reinier van de Ruit

Indigenous Cultural Intellectual Property and Australian IP laws

Article 31 of the United Nation’s Declaration of the Rights of Indigenous Peoples (‘the Declaration’) recognises Indigenous peoples’ right ‘to maintain, control, protect and develop their cultural heritage, [and] traditional knowledge’ which includes utilising the law to protect the intellectual property in ‘oral traditions, literatures, [and] designs’.  Australia has declared its formal support for the Declaration, but has shied away from confronting the reality that existing IP laws were not designed to protect the practice and expression of cultural heritage and traditional knowledge, even if coupled with native title and laws protecting sacred sites and objects.

In 2011, an artist and a gallery owner, both non-Indigenous, caused a public outcry by creating and publicly exhibiting a sculpture depicting sacred Wandjina without authorisation from the traditional custodians. Ultimately, after hearing submissions from Arts Law, Worrora elder Donny Woolagoodja and Ngarinyin spokesperson Gordon Smith Jr, the NSW Land & Environment Court ordered its removal.[2]

What was most significant about that case was the absence of any remedy to be found other than in local planning laws – a serendipitous and coincidental source of protection available only because of the unique circumstances of the exact location of the sculpture.

Currently copyright, moral rights and consumer laws prohibiting misleading and deceptive conduct can provide limited protection in the right situation. Following the decision in the case of the Blue Mountains sculpture, a novel strategy was devised to use trade mark registration to protect Wandjina cultural knowledge. In October 2011, leading Australian law firm Allens, working with Arts Law, filed applications to register WANDJINA as both a word and a device mark in classes 31, 41 and 45. Arts Law reasoned that even if unsuccessful, the attempt could form part of a broader advocacy argument highlighting the inadequacies of Australian law to protect interests set out in the Declaration.

Pre Filing Issues

Three separate but related Aboriginal language groups are the cultural custodians of Wandjina knowledge and belief systems. Since trade mark law is based on notions of private property and does not recognise this form of communal ownership, the threshold inquiry focussed on who would apply for and legally own the Wandjina trade mark. This issue revealed the difficulties of manipulating notions of traditional cultural heritage into the constraints of existing law.  Aboriginal owned community art centre Mowanjum Artists chaired by Worrora lawman Donny Woolagoodja represented artists and senior lawmakers of all three groups. However the Wandjina trade mark was ‘owned’ even more broadly. The three groups each had separate native title claims and separate land councils. Kimberley Aboriginal Law and Cultural Centre (KALACC), a non-profit Aboriginal Corporation, is the peak body for the law and culture of some 30 Kimberley Aboriginal language groups including the three relevant groups. It was identified as an organisation whose constitution enabled representation of all of the traditional custodians and which could be responsible for ensuring the trade marks were used appropriately. Mowanjum and the Land Councils would all later exercise their rights through trade mark licensing agreements.

Various spellings were considered and one chosen – on the basis that unauthorised use of all others would effectively be precluded on the basis of being ‘deceptively similar’.

Classes 35, 41 and 45 were selected as covering the ways in which the marks were being used, and were likely to be used, commercially as well as, to the extent possible, providing a mantle extending over the traditional cultural and religious practices of the three language groups.

Trade mark experts Andrew Wiseman, Deborah Jackson and Kimberley Evans from Allens acted pro bono for KALACC throughout the application and registration process, but were under no illusions as to the obstacles ahead. They and Arts Law were careful to communicate the difficulties and limitations of the trade mark system even if the applications were successful. Generally trade marks protect brands and logos used in commerce, not expressions of cultural heritage. A registered trade mark might provide a bulwark against misuse in marketing by opportunistic non-Indigenous tourism operators, but can’t protect against all examples of cultural ignorance – a racehorse named Wandjina for example.

Application, Examination and Response – Non-distinctiveness

The first Examiner’s Report from IP Australia, received August 2012, raised objections under section 41 of the Trade Marks Act 1995 on the grounds, not unanticipated in the case of the word mark, that the trade marks were descriptive and lacked distinctiveness. Distinctiveness – the key element for registration whether inherent or developed through use in trade – can be understood as requiring that the mark must not be merely descriptive or characteristic of the goods or services in respect of which registration is sought. If so, then it is a mark that other traders should be able to use to describe their goods or services. “Apple” for example is uniquely distinctive when applied to computer goods but inherently descriptive of apple juice. In the case of the device mark, a stylised ‘Wandjina’ head, the objection that it was somehow descriptive was surprising. As a general rule, device marks are less likely to be rejected on the ground that they lack the ability to distinguish.

After reviewing the research undertaken by the Examiner, Allens responded to the section 41 objection to the device mark by arguing that the objection was based on research connected to the word ‘Wandjina’ and could not be relied upon in connection with the device mark. In any case, the device was not one which ‘other traders’ should be able to use because:

“the Worrora, Wumumbal and Ngarinyin peoples are the traditional custodians of the “Wandjina” and any images in relation thereto, reflecting a custodial relationship built up over many thousands of years. … use by a third party of [the mark] other than to refer to the specific goods and service of, or authorised by, the Worrora, Wunumbal and Ngarinyin aboriginal peoples would be likely to mislead or deceive ….” [3]

In relation to the word mark, additional arguments were made pointing to the registration of other trade marks embodying spiritual significance and registered by organisations representing communities sharing common spiritual beliefs (eg TM 1311936 for the word mark ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE). In neither case was evidence of use filed, arguing rather that in principle the marks were inherently distinctive.

In August 2014, the Examiner accepted these arguments and withdrew the section 41 objections and on 2 October 2014 both applications were advertised as accepted. On 10 December 2014, the marks were registered.

KALACC is now implementing a system of licence arrangements to ensure that all businesses and bodies representing the cultural custodians can use the marks within the umbrella of protection of the Trade Marks Act.

As observed by the Allens trade mark team,

“This is a landmark Australian trade mark case.  It highlights the possibilities afforded by Australian trade mark law to apply the registration regime in a way that aligns with and furthers the spirit and objectives of the Declaration.”

Using Trade marks to Protect ICIP

The successful registration of the Wandjina trade marks demonstrates the capacity of the trade mark system to provide a degree of protection for Indigenous Cultural Intellectual Property (ICIP) in Australia. New Zealand and Canada are examples of other jurisdictions that have successfully utilised trademark law to protect ICIP. For more information on the systems and reforms in these jurisdictions see Trade mark protection and ICIP: How does Australia fare?

While a substantial victory in using the existing legal framework in a novel way to protect an ancient tradition and culture, it is still the case that Australia’s laws fall far short of the protection envisaged by the Declaration on the Rights of Indigenous Peoples. Arts Law continues to advocate for a more holistic approach rather than the piecemeal jigsaw of protections currently available. For more information about Arts Law’s advocacy work in relation to ICIP see here.