Letters to the Editor
THE EDITOR: Carnival and all of its associated cultural festivities are part of our blood as Trinidadians / Tobagonians. It runs through our veins. Many Trinis still know a tabanca of our missed carnival this year. Now we are faced with an J’Ouvert we weren’t expecting – and it didn’t get the usual Trinidadian / Tobagonian reaction when they hear the words J’Ouvert and rum.
There is an uproar among the nationals and many do not know where to place these feelings. 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 get these rights?
Can the word J’Overt be a registered trademark in the United States? The short answer is that nothing legally prevents Michael B Jordan from obtaining this mark in the United States. In fact, the word J’Ouvert has been registered as a trademark in the United States and also in the TT in the past.
How does the trademark protection of the J’Overt word affect our use of the word? Trademark protection is jurisdictional in nature and is also granted for specific goods and services. The protection granted in the J’Ouvert mark would therefore provide exclusive rights to the word J’Ouvert specifically in relation to alcoholic beverages in the United States.
There is another J’Ouvert trademark in the United States for digital media that has been registered since 2013. As the two products differ significantly, they have both been granted trademark registry protection. It is only if that mark becomes a “well-known mark” under our Trademarks Act that it may eventually affect our use of the word in local trade.
Legal problem vs ethical problem
While Jordan may be well within his legal rights, this situation raises the issue of cultural appropriation and the protection of TCEs. While there is no formal legal recourse for cultural appropriation, many passionate movements around the world have caused owners to reconsider and rename 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 afford protection to our rich cultural heritage which is unique to our diaspora.
When we hear the word J’Ouvert, it is filled with feelings and emotions. This is due to the life we have given to this cultural word. Perhaps this is why the name was chosen as the brand. But the question remains: Should people of another culture be able to benefit or even exploit our TCEs?
There have been many developments in this area at the international level where countries steeped in traditional culture seek to protect what they have created as a community and seek to obtain fair reward and recognition for the creative development of a culture. Although we currently have little or no recourse against instances such as the J’Ouvert brand, these instances provide the building blocks to get us where we need to be. We must rely on these bodies to continue the fight to protect our culture.
Some countries have taken commendable steps to recognize and protect their culture. Our Caribbean sister, Barbados, has protected its folklore under copyright laws. This is great from a local point of view, but we also need protection at the international level, with the adoption of harmonious laws that can be adopted and enforced internationally.
The path to follow
Traditionally steeped communities should be granted intellectual property rights over their traditional cultural expressions. These rights can help communities protect themselves against cultural appropriation and cases like this, where our culture is used and the intellectual property rights around it are granted to an individual not belonging to that culture.
A word of caution, however, when defending our rights is that we must ensure that we do so in a balanced way. We have nothing to gain from protecting our culture at the cost of stifling freedom of expression and further cultural development. Cultural exchanges are essential to further develop culture and move towards greater harmonization between different cultures. What we should demand and expect, however, is fundamental respect and recognition of our culture and to be protected from its exploitation.