Ka Wai Ola - Office of Hawaiian Affairs, Volume 40, Number 3, 1 March 2023 — E NHLC... [ARTICLE+ILLUSTRATION]

E NHLC...

V E NINAU IA NHLC 1 ^ ASK THE NATIVE HAWAIIAN LEGAL CORPORATION 1

What are the legal rules for using Hawaiian names in business? Can businesses that are not Hawaiian own Hawaiian names? Can businesses that use Hawaiian names stop Hawaiians from using those Hawaiian words?

By Makalika Naholowaa, Executive Director Native Hawaiian Legal Corporation State and federal law allow businesses to use and own business and produet names ineorporating olelo Hawai'i as tra-

denames and trademarks. There is no requirement for the business to be owned or led by kānaka, for any eonsultation with or eonsent from members of the Hawaiian eommunity, nor is there a requirement that the eompany or its produets have a speeifie afhliation with Hawai'i, Hawaiian people, or Hawaiian eulture. Under eurrent law, a business elaiming rights to a name in olelo Hawai'i only needs to meet the same requirements for using and owning any other kind of name. One requirement is that businesses ean not monopolize the use of generie names for what their business does or provides. For example, no one eould own - and stop others from using - "Landseaper" or "Mea Ho'oulu Ho'onani" for a business providing landseaping serviees. Highly deseriptive names as well as geographieally deseriptive names (i.e., plaee names) are also hard to legally own in business or produet names. For example, the term "Kona" ean't be monopolized in names for eoffee produets grown in Kona. A name that was only "Kona Coffee"- with no other distinetive word or design elements - would be hard to sueeessfully elaim ownership to without evidenee that the name had "acquired distinctiveness" with consumers, normally due to longterm, substantially exclusive use resulting in consumer recognition of the name as a sole identifier for one business. That would be hard to do in this example. The US trademark database shows more than

50 registered trademarks incorporating the term "Kona" for coffee goods and services. Further, geographically misdescriptive names (i.e., names that falsely indicate an origin ffom a plaee likely to confuse or deceive customers) are not protected and may even result in legal liability under false advertising and consumer protection laws. Importantly, even if legal rights to a business or product name using olelo Hawai'i are recognized, the rights generally only extend to identical or confusingly similar uses in commerce. Those rights do not affect anyone's legal right to use the words in normal discourse for their defined meanings. For example, numerous federal trademarks exist today for "'Ohana" related to a wide range of goods and services, including ammunition, music recording, and vitamins. These registered rights might be used to stop the marketing and sale of competitive "'ohana" vitamins and bullets. They could not be used to stop anyone from using the term 'ohana for its regular purpose of referring to families. Although the law includes numerous restrictions, like these, to limit ownership rights to business and product names, mueh room remains for loeal, national, and international businesses to use and own Hawaiian words as business names and intellectual property assets. This creates numerous concerns about the protection of the language; misuse of the words, their mukiple meanings, and their mana; weaponization of IP rights to olelo Hawai'i against Hawaiians; and confusion that ean occur in the public as to the Hawaiian source or cultural authenticity of a product or service. Progress in addressing these concerns will require continued advocacy to law and policymakers, in legal proceedings, and by consumers in the market. ■ E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You ean contact NHLC about your legal needs by calling NHLC's offices at 808-521-2302. You ean also learn more about NHLC at nativehawaiianlegalcorp.org. The Native Hawaiian Legal Corporation (NHLC) is a nonprofit law firm dedicated to the advancement and protection ofNative Hawaiian identity and culture. Eaeh month, NHLC attorneys will answer questions from readers about legal issues relating to Native Hawaiian rights and protections, including housing, burial protection, land, water, and traditional and cultural practice. You ean submit questions atNinauNHLC@nhlchi.org.