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The Maasai Brand: Can IP Laws protect a traditional culture?

Friday May 31, 2013 at 9:20am

After years of exploitation with outsiders using and benefiting from their culture without permission, the Maasai are looking to protect what is theirs.

Historically, there has never been a unified Maasai entity that individuals or companies could approach for permission to use elements of Maasai culture in their own products. With over 3 million estimated Maasai living across 12 districts in both Kenya and Tanzania, establishing such a body will be a challenging but potentially lucrative initiative.

The Maasai Intellectual Property Initiative (MIPI) is a new project geared to help the Maasai pursue intellectual property protection. Chaired by Isaac ole Tialolo, a Maasai leader and elder, MIPI’s initial concern is communicating with all members of the Maasai tribe to inform them of possibilities and legalities surrounding their intellectual property rights. Working with Light Years IP, an NGO that specialises in securing IP rights in developing countries, he has managed to reach roughly 1.2 of the 3 million tribe members thus far.

Ultimately, the plan for MIPI is to create a General Assembly of Maasai elders who are trained in IP. They would form as a legal body on all IP matters for the tribe and negotiate with companies interested in or already violating their IP rights.

Currently, approximately 80 companies world-wide use the Maasai name or image, including Land Rover and Louis Vuitton. Light Years IP suggests if the Maasai “brand” was corporation-run, it could be worth up to $10 million annually. Although that amount is purely speculative, the NGO argues that ownership of intellectual property could provide a substantial source of income for the Maasai.

Founder of Light Years IP, Ron Layton, explains, "It's almost certainly the biggest cultural brand in the world. It ranks right up there. It's a serious brand.”

"Those companies may be using the Maasai brand in ways that really do enhance their business, so it's reasonable for the Maasai to say, 'Well, why aren't you coming to talk to us? Why aren't you asking our permission? Why don't you engage with us?'"

Some industry professionals argue that while intentions and efforts of the Maasai to regain control of their “brand” are very much justified, their case is not very strong in terms of international property law. Typically, IP is designed to protect new businesses and innovations, not pre-existing cultures.

Furthermore, patents wouldn’t be a viable option to pursue, as products and services must be new to be protected. Trademarks wouldn’t be very helpful either, as they are issued on a first-come-first-served basis, and other companies already have Maasai-oriented trademarks issued for their products.

Despite these difficulties, there is precedent for cultures like the Maasai in seeking IP protection. Most recently, the Native American Navajo Nation won an infringement suit against clothes company Urban Outfitters for use of their name on products. And further back, fifteen years ago, the Australian Aborigines secured a voluntary code which governs the use of their cultural and intellectual property.

Although not legally enforceable, voluntary codes can be just as, if not more, powerful than other traditional legal routes. Independent branding consultant, Bruce Webster, explains that voluntary codes are useful for creating an industry norm. They can serve as a “name-and-shame” tool for those who don't sign up to following them. Any Western corporation seen going against the “code” would certainly be seen as exploitative – a great way to protect a culture from future violation.

For tribe elder Isaac, this route may be most appealing. As he expressed in a recent interview, "If you just take what belongs to somebody, and go and display it and have your fortune, then it is very wrong. It is very wrong."

What is equally distressing for Isaac is the sense of violation when images and products portray the Maasai in a disrespectful way. "It offends me because they don't know the meaning. What matters is the respect," he says.
For now, Isaac continues to organise and inform his people to create a cohesive approach to this serious matter. Until then, no decision will be made on how the Maasai will proceed in protecting their “brand”. Perhaps, others will start to think twice before profiting from them in the future.

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