Smith's paper states that -
In considering the South African case of Laugh It Off Promotions CC v. South African Breweries International, the role of trade mark legislation and its interpretation by the courts is discussed in light of the balance between the rights of trade mark owners and cultural integrity. Furthermore, the legislative approaches in protecting indigenous cultures in the United States, Columbia and New Zealand are considered. While New Zealand arguably provides for greater protection of indigenous cultures through its recently enacted trade mark legislation, it is argued that laws broader in scope could be more effective in protecting cultures from not only exploitation, but from any use of trade marks that may degrade cultural integrity. However, the role of intellectual property law as a mechanism for extensive cultural protection is debatable in itself.He goes on to comment that -
Indigenous groups often follow their own customary systems of highly regulated 'cultural intellectual property', where those people who are able to make certain creations are restricted, as are the ways particular creations can be used. Furthermore, indigenous creations are often representative of something beyond physical form that requires a greater respect. This system of protection evidently differs from the western system of intellectual property, where something becomes part of the public domain if not protected by intellectual property, usually where it does not meet specific criteria or protection has expired. Cultural clashes thus exist where entities (often non-indigenous) obtain trade marks relating to indigenous culture in satisfying the western intellectual property requirements, while at the same time breaching indigenous cultural rights. Trade marks have allowed for the appropriation of a number of indigenous names and images by non-indigenous corporate interests to promote their automobiles, alcoholic beverages, and natural food products, to name a few uses. Some designs and words may be sacred in indigenous cultures, and the idea of a registered sacred indigenous word or design as a trade mark is often considered offensive. Dougherty states that such exploitation dehumanises and disparages indigenous peoples, and devalues the ideas and beliefs of their culture.81 Long provides the example of the commercialisation of cultural traditions of Maoris in New Zealand, Native Hawaiians and Native Americans in the United States, and indigenous cultures of Latin America, going as far as to state that their cultural and religious significance has been virtually erased from public memory.There is a more provocative stance in 'Magical Thinking in Trademark Law' by Katya Assaf III, also available on SSRN, which argues that -
People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects.Assaf goes on to claim that -
The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle. ... In this article, I have focused on magical beliefs in the particular context of advertising and brands. We all know that advertising persuading us that products of a certain brand work miracles should not be believed. Despite ads suggesting otherwise, our rational minds perfectly understand that Bayer does not work wonders, that Magic Secret cream can hardly cause any astringent sensation and that there is no happiness in a Coca-Cola bottle. And yet, because of our natural tendency toward magical thinking, the influence of such claims may be difficult to resist. Modern advertising largely attempts to direct our natural inclination to believe in magic toward brands of consumer goods. When it succeeds, brands take on magical dimensions. Like all magic, the magic of brands may have entirely real effects. For instance, the magic of Rolex may make one more self-confident; the magic of Coke makes it taste better than Pepsi; the magic of Tiffany raises women's heart rates. The legal approach in this field is somewhat contradictory. While dealing with advertising that builds up the magical aura of brands, the legal system adopts Alice's view and wholly ignores the human tendency toward irrational thinking. Since people are not supposed to believe the impossible, there are no restrictions whatsoever on attempts to make the consumer believe in the magic of brands. Yet, while protecting famous brands against unauthorized uses, the legal system radically changes its approach. Although the traditional purpose of trademark law is to protect brands as informational devices allowing rational purchasing decisions, this strictly functional view has long been abandoned. Today, trademark law essentially recognizes the magical dimension of brands as an entirely real and valuable asset, subject of private property and legal protection. Corporations invest much money and effort in creating the magic of their brands, and trademark law protects the outcome of this investment against misappropriation and injury. Doing so, it implicitly adopts the Queen's view that people can believe the impossible: it's only a matter of practice. This inconsistent legal approach is obviously undesirable, but the question is, what view should the legal system choose – Alice's or the Queen's? Although empirical research has found much support for the Queen's view, this article has argued that Alice's approach should generally be preferred as a legal standard. The legal system is not a looking-glass. Its purpose is not to perfectly reflect every single trait of the real world. The legal system should regulate human behavior according to certain standards, which do not necessarily have to accurately reflect the human nature. Not all aspects of the human behavior should be subject to legal regulation. The legal system generally assumes human rationality. This presumption should not be abandoned. When special circumstances do not require otherwise, the legal system should treat people as rational beings, however unrealistic this assumption may be. The whole field of irrational, magical and religious beliefs should be generally left outside the scope of legal regulation. Such beliefs are neither verifiable nor falsifiable, and the legal system should refrain from taking sides in their respect. And usually, it does. For instance, both, preaching and attacking the Christian religion is legally allowed. In the past, this was different: while preaching the Christian religion was, of course, permitted, the crime of blasphemy prohibited mocking it. This asymmetry reflected the perception of that time, according to which Christianity was part of the legal system. Similarly, permitting to build a magical aura around brands and then restricting uses that may harm this aura essentially turns the belief in the magic of brands into part of the legal system. This result is undesirable. The legal system should assume a neutral position in relation to this kind of beliefs. Trademark law should stop attempting to determine the merits of its protection according to the actual consumer's perception of brands. Real as they may be, magical beliefs in brands should be left outside the scope of legal regulation. Trademark law should protect only the purely informational dimension of brands. It should treat the consumer as a rational being, who uses trademarks to make educated purchasing decisions. By contrast, associations, emotions and all sorts of irrational and magical beliefs brands evoke should have no legal significance.Meanwhile copyright critic Brendan Scott offers charts mapping the number of words in Australian copyright statutes. It is unclear whether the mapping moves beyond an item for parlour games (IP trivial pursuit?), given that there is no indication of whether the growth in words since the Statute of Anne (or since 1905) is out of sync with the wordiness of other statutes. Has the typical Commonwealth enactment become wordier over the past century? Is wordiness necessarily bad, for example if it results in greater clarity?
