Western Yalanji man says trademarking traditional knowledge breaches Native Title rights and interests
Yeppoon-based, non-Indigenous company, GumbyGumby.com have failed in their attempt to trademark the name ‘Gumby Gumby’.
The Pittosporum angustifolium, otherwise known as Gumby Gumby, is a native apricot grown throughout inland Australia. Extract from Gumby Gumby leaves have been used in traditional bush medicine across Australia for thousands of years.
GumbyGumby.com applied for the trademark in 2017 but have since failed to earn exclusive rights due to their inability to address claims made against the trademark.
Whilst the company has been unsuccessful in their attempt to trademark the name, they do hold the patent – meaning they hold the rights to the method or process they use to draw leaf extract.
Calls are now arising for their patent to be reviewed and possibly revoked.
Western Yalanji Traditional Owner and member of the North Queensland Land Council, Terry O’Shane, can recall close friends using Gumby Gumby as medicine; boiling and extracting oils from the leaves.
He told NIT the trademarking of Indigenous language and knowledge can be considered a breach upon Native Title rights and interests.
“The recognition our Native Title rights and interests [were] enshrined in the legislation … so all those plant products, all the stuff that we use as traditional medicine, all that land, all our knowledge, all our river systems, all our words we have for trees, animals and medicines, and the way in which it is done and the ceremony; that’s all ours,” O’Shane said.
“Our rights and interests are a whole range of material that affects the way in which we identify and how we relate to other members of our community, how we relate to our family – it’s a whole different kettle of fish.”
“And what’s happening here with these fullas, this isn’t about Aboriginal rights, it’s about gaining financial benefit and interest from Indigenous knowledge and traditions.”
Frustrated by the attempt from GumbyGumby.com, O’Shane said the legal system hasn’t been updated to protect the rights Aboriginal people have to their cultural knowledge.
“I have no respect for people who try to do that … they copy this and copy that and now they want to use patent and copyright on our material. That belongs to us.
“North Queensland Land Council … are working on documentation on how we will proceed from here into the next five years about how we will have discussions with the state government, how we have conversations with local government.
“Any time something comes to be registered, that is of First Nations, for copyright or patent … the regulators have to stop it. The rest of Australia must recognise what Native Title rights and interests means and they’ve got to enforce that.
“There’s a responsibility on them to tell people they can’t do that. Unless they have consent and clearance from every Aboriginal community in Australia, it cannot happen.”
Managing Practitioner Director at Arma Legal, Hema Hariharan explains that whilst corporations have the ability to patent and copyright, communities do not.
“Generally, a business [individual or corporation] will apply for the trademark to protect a brand or identity. In terms of having a whole Aboriginal community group apply for trademark, the current system doesn’t go to that extent,” Hariharan said.
“The purpose of a trademark generally is for commercial purposes. And Aboriginal people aren’t necessarily using bush foods and medicines for commercial purposes, they are using it to live.”
“The nature of Indigenous knowledge is that it is inherently owned collectively, it’s owned by communities rather than individuals. Communities have the responsibility for that traditional knowledge … this current legal system, does not adequately address ability to trademark or patent that information.”
Whilst the legal system hasn’t advance to protect Indigenous knowledge, ways do exist to ensure that communities are recognised and compensated.
“There is an ability to reach voluntary agreements where a company can apply for a patent, and acknowledge the Traditional Owner as the inventor and they come to a commercial arrangement for protecting the Indigenous Intellectual Property and sharing the commercial benefits,” Hariharan said.
Until the system changes, First Nations knowledge remains under threat, as are opportunities for Aboriginal businesses.
“We can foresee these issues happening more and more as the general population learn about traditional practices, unless the government have a discussion and talk to Aboriginal people.
“Government can look at international instruments that have frameworks [so] they can protect that collective knowledge of Aboriginal people to stop non-Indigenous businesses from capitalising on it.
“These businesses would essentially take the economy away from Aboriginal people who could use it for their own benefit, to help their mob and to have an economically viable business.”
By Rachael Knowles