Not J’Ouvert we were hoping for

THE EDITOR: Carnival and all its associated cultural festivities are part of our blood as Trinidadians/Tobagonians. It runs through our veins. Many Trinis are still experiencing a tabanca from our missed Carnival this year. Now we are faced with a J’Ouvert we did not expect – and it has not gathered the usual reaction that Trinidadians/Tobagonians have when they hear the words J’Ouvert and rum.

There is an uproar amongst nationals and many don’t know where these feelings should be placed. Should the Government have protected our culture from appropriation? Should the USPTO have done proper research to determine the true meaning of J’Ouvert? Can Michael B Jordan be granted these rights?

Can the word J’Ouvert be trademarked in the US? The short answer is there is nothing legally precluding Michael B Jordan from being granted this trademark in the US. In fact, the word J’Ouvert has been registered as a trademark in the US and also in TT in the past.

How does trademark protection of the word J’Ouvert affect our use of the word? Trademark protection is jurisdictional in nature and is also granted in relation to specific goods and services. The protection granted in the J’Ouvert trademark would therefore provide exclusive rights to the word J’Ouvert specifically in relation to alcoholic beverages in the US.

There is another registered J’Ouvert trademark in the US for digital media which has been registered since 2013. As both goods differ significantly, they were both granted protection on the trademarks registry. Only if this mark becomes a “well-known mark” in accordance with our Trade Marks Act can it possibly affect our use of the word in trade locally.

Legal issue vs ethical issue

While Jordan may be well within his legal rights, this situation raises the issue of cultural appropriation and protection of traditional cultural expressions. While there is no formal legal recourse for cultural appropriation, many passionate movements worldwide have caused proprietors to reconsider and rebrand when faced with accusations of cultural appropriation. In an ideal world, however, we would not need to rely on movements, but rather on properly implemented international intellectual property laws that can grant protection to our rich cultural heritage that is unique to our diaspora.

When we hear the word J’Ouvert it is packed with feeling and emotion. This is due to the life we have given to this cultural word. This is perhaps why the name was chosen as a trademark. But the question remains: Should people from another culture be able to benefit from or even exploit our traditional cultural expressions?

There have been many developments in this field internationally where countries steeped in traditional culture seek to protect what they have created as a community and seek to get just reward and recognition for creative development of a culture. While we currently have little or no recourse against instances such as the J’Ouvert trademark, these instances provide the building blocks to get us where we need to be. We need to lean on these instances to further the fight to protect our culture.

Some countries have commendably taken steps to recognise and protect their culture. Our Caribbean sister, Barbados, has provided protection for its folklore under copyright laws. This is great from a local perspective but we also need protection on an international level, with adoption of harmonious laws which can be adopted and enforced internationally.

The way forward

Communities steeped in tradition should be granted intellectual property rights for their traditional cultural expressions. These rights can help communities to protect against cultural appropriation and instances such as this, where our culture is used and the intellectual property rights surrounding it are granted to an individual not belonging to that culture.

A word of caution however, in advocating for our rights, is that we must be careful to do so in a balanced manner. We have nothing to gain in protecting our culture at the cost of stifling freedom of expression and further cultural development. Cultural exchange is vital to further develop culture and to move towards more harmonisation among various cultures. What we should demand and expect, however, is the basic respect and acknowledgement for our culture and to be protected from exploitation of it.

TERITA KALLOO

attorney