“I can certainly understand why they might be upset from a traditional angle, but it seems fairly ridiculous that you can tell people how they can and cannot dance.”

The whole point is that the dance comes from a culture where it is not at all ridiculous to tell people how they can and cannot dance. And the example of “misuse” given– the Italian commercial– is, in essence, blasphemy within that cultural context.

I am not arguing that the IP move is necessarily the correct thing to do here, but this is a situation that warrants more than knee-jerk disdain.

You are correct in that tribal cultural and religious symbols and practices don’t fit neatly into the trademark concept. The Maori have been trying since 1998 to secure trademark registration and protection of their dance to prevent misappropriation and commercial use by businesses.

The issue here, however, is one of cultural property. Cultural property protections are not a direct analogue to intellectual property and is the gist of your concern. The goal of cultural property is never to turn something over to the public domain as in copyright or patent law, but to protect it from misappropriation by the larger culture in perpetuity.

But then you should recall that trademarks are protected indefinitely and not turned over to the public domain because the goal of trademark law is consumer protection and protection of a business’ good will.

That is why trademark law is the easiest concept to use to protect cultural property. In the case of New Zealand, it required a new agreement. In the U.S., the equal enforcement of the Lanham Acts existing provisions didn’t require new legislation.

You have to recall that this is a separate culture with its own concepts of property and the rights to them. Most cultural property is closely tied to native religions and have deep, religious meaning that is harmed by unauthorized use, especially those outside the culture.

No one within the tribe can transfer the cultural property because the culture itself ‘owns’ the property. Legally, no one person or group of persons has standing to do it. Even the religious leaders don’t have standing. It is a right that cannot be divested by the tribal members. These practices and symbols are the culture and the religion.

Thus the point of the Maori protecting its dance is because it wants to protect its religion and culture. The Maori have a right to state the terms of the use or non-use of its property, not New Zealand nor other outside cultures.

New Zealand, along with Australia, Canada and the U.S. were engaged in cultural destruction not very long ago. In all four countries, native children were forcibly removed from their families and sent to boarding schools where their cultures were literally beaten out of them.

In the U.S. the official policy was to “kill the Indian, save the child” as the boarding schools sought to wipe out tribal languages and cultures in entire generations. It continued up to the late 1970s.

Indigenous cultures and religions hung on by a thread for over a century. Our cultures are still recovering from the attempts to destroy us.

In the case of New Zealand and Australia, they would remove many of the native children from their families permanently, never letting the parents see their children again. Again, this continued well into the latter part of the 20th Century.

How would you feel if the government came into your home, forcibly removed your children and brainwashed your children to not believe in the things you felt were important, your religion and your culture?

Wouldn’t you want to protect your religion and culture so you could bring your children back and deprogram them?

A good example of how something seemingly innocuous is deeply offensive and harmful to a culture is the prohibition of cutting one’s long hair among traditional American Indians. Setting aside the religious and cultural prohibitions, it is a deeply racist thing to force an American Indian to cut his or her hair. To you, it is just hair, but to us, it is our culture and religion being attacked.

The boarding schools took pictures of American Indian children coming in with their native clothes and long hair. Then, after shaving their heads and putting them in American clothes, another picture was taken. These pictures were used by the government as propaganda for its cultural genocide.

It was and remains a blatant racist act to us, similar to burning crosses on an African American’s lawn, only with a deeply offensive religious twist. It has risen to the level of a new form of cultural property.

Tribes in the US and Canada continue to struggle to protect and rebuild their cultures, as do the Maori and Indigenous Australians. Vital to that effort is cultural property laws to protect sacred symbols and cultural practices from being misappropriated by the larger culture.

In the U.S., trademark law protects Christians from seeing “Jesus Christ Wine” on their store shelves. But up until 1994, Native Americans were not federally protected against having their religious symbols misappropriated by companies who wished to steal the symbols and use them as their own registered trademarks. By registering the marks, the companies could legally deny use to the tribe itself. Despite the clear language in the Lanham Act against registration and protection of religiously based marks, it took education of the Patent and Trademark Office before the Office understood that it should have been protecting them all along.

At root of the problem is the dominant culture has integrated racism against tribal peoples and their cultures to the extent that it fails to recognize it as racism (i.e. the ‘redskins’ racial epithet integrated racism into a protected trademark, despite the Lanham Act’s clear prohibitions on racist marks – the court cases showed the extent to which the dominant culture would go to excuse its continued racist behavior).

Instead of railing at something denied you under the public domain doctrine, a Western legal concept, perhaps you can think of it as one small step toward preserving the culture so your grandchildren can hear from the Maori, themselves, as they tell them who they are and how they live. That is the right of the Maori to do.

The alternative is destroying the culture by stealing the last property the culture claims as its own. Haven’t we evolved into better people than to do a thing like that?