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 product names incorporating ʻōlelo Hawaiʻi as tradenames and trademarks.
There is no requirement for the business to be owned or led by kānaka, for any consultation with or consent from members of the Hawaiian community, nor is there a requirement that the company or its products have a specific affiliation with Hawaiʻi, Hawaiian people, or Hawaiian culture.
Under current law, a business claiming rights to a name in ʻōlelo Hawaiʻi only needs to meet the same requirements for using and owning any other kind of name.
One requirement is that businesses can not monopolize the use of generic names for what their business does or provides. For example, no one could own – and stop others from using – “Landscaper” or “Mea Hoʻoulu Hoʻonani” for a business providing landscaping services.
Highly descriptive names as well as geographically descriptive names (i.e., place names) are also hard to legally own in business or product names. For example, the term “Kona” can’t be monopolized in names for coffee products grown in Kona. A name that was only “Kona Coffee”- with no other distinctive word or design elements – would be hard to successfully claim ownership to without evidence that the name had “acquired distinctiveness” with consumers, normally due to long-term, 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 from a place 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 ʻōlelo Hawaiʻi 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 “ʻOhana” 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 “ʻohana” vitamins and bullets. They could not be used to stop anyone from using the term ʻohana 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, much room remains for local, 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 multiple meanings, and their mana; weaponization of IP rights to ʻōlelo Hawai’i against Hawaiians; and confusion that can 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.
This article was originally published in the March 1, 2023, edition of Ka Wai Ola. NHLC partners with the Office of Hawaiian Affairs to publish an article in Ka Wai Ola each month that responds to community questions. You can access this article on the Ka Wai Ola website here.
Ask NHLC provides general information about the law. Ask NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302.