Carnival, with all its associated festivities, is part of our blood as Trinbagonians. It runs through our veins. Many Trinis still live this year a “carnival tabanca” of our failed carnival. Now we are faced with an I open that we did not expect – and it did not have the usual Trinbagonian reaction when they hear the words “I open” and “Rum”.

There is an uproar among Trinbagonians and many do not know where these feelings need to be placed. Should the government have protected our culture from appropriation?

Should the United States Patent and Trademark Office 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 Trinidad and Tobago in the past.

How does the trademark protection of the word “J’Overt” affect our use of the word?

Trademark protection is jurisdictional in nature and is also granted for specific goods and services. The protection conferred by the mark “J’Ouvert” would therefore provide exclusive rights over the word “J’Ouvert” specifically with regard to alcoholic beverages in the United States of America.

There is another trademark “J’Ouvert” 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. Only if that mark becomes a “well-known mark” under our Trademarks Act, can it potentially affect our use of the word in local commerce.

While Michael B 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.

For us, the word “J’Ouvert” is imbued with feeling and emotion. This is due to the life we ​​have given to this 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 traditional cultural expressions?

There have been many developments in this area at the international level where countries steeped in their 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 applied at the international level.

Traditionally steeped communities should be granted intellectual property rights for 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 warning. In defending our rights, 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.

Terita kalloo

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