Business and Intellectual Property Authority (BIPA) incites further clashes between Ovaherero communities

BIPA empathizes that in order to promote the use and protection of traditional knowledge in the country, Namibia adopted the Swakopmund Protocol for the Protection of Traditional Knowledge and Expressions of Folklore on 9 August 2010 in Swakopmund Organization, ARIP (2010). BIPA is, therefore, the appropriate authority in this protocol legally mandated with the responsibility of overseeing and administering the provisions of this protocol.

However, registering trademarks of symbols and inscriptions under the Herero Red Flag Association shows traditional knowledge systems without using prior informal consent with Ovaherero communities at the national level as well as in the wider diaspora. This consequently incites further clashes amongst Ovaherero communities.

To inform BIPA what the Herero Red Flag Association and Herero Royal Red Flag Association derive from the Ovaherero Red Flag or Otjiserandu in the Otjiherero language, to bring it closer to the Ovaherero community without delving into the difference between the two red flags. Because the differences are internal affairs of the Ovaherero communities, not BIPA affairs. Therefore, this red flag or association that is registered at BIPA used the lion or kudu symbols and an inscription (M.P.S.M or M.P.H.K.K) which is the abbreviation for Mukuru Punaete Samuel Maharero or Mukuru Punaete Hosea Komombumbi Kutako on the flag when registering as a Namibian company under Section 21. However, these are not just red flags or associations as per your registry but are symbols of cultural identity for Ovaherero people around the world.

These symbols and inscriptions have been used by the traditional authorities, of the Ovaherero people in various activities as symbols of identity and cultural practices. Ovaherero people after the burial of Maharero in Okahandja on August 23, 1923, used these symbols and that day mark the beginning of the annual Red Flag Day commemoration, held each year on the Sunday closest to August 23. Due to Ovaherero internal dispute and politics in April 2018 Ovaherero paramount chief Advocate, Vekuii Rukoro made changes to the Ovaherero red flag, replacing the symbol of the late Chief Samuel Maharero with that of the late revered Chief Hosea Kutako. The changes also include replacing the symbol of a kudu with that of a lion and changing the inscription on the flag, Mukuru Punaete Samuel Maharero to Mukuru Punaete Hosea Komombumbi Kutako and the date of the annual Red Flag Day commemoration from August 26 to July 18, marking the death of Hosea Kutako.

Thus, the symbol of lion and kudu and their inscription on the red flag (M.P.S.M or M.P.H.K.K) are engraved in Ovaherero as their legacy, and it bears the resurrection of the Ovaherero after a terrible period of death and destruction victims of the 20th-century First genocide 1904 and 1908. Henceforth, wearing this symbol and inscription as an Omuherero persona is an acknowledgment of the underlying suffering and sacrifice that sadly now lies at the core of modern Ovaherero identity. Carrying this symbol and inscription as a community overcoming the adversities of the past while tackling its present challenges in the diaspora as well as in Namibia becomes a cultural practice. Not only are these symbols and inscriptions symbols of identity for Ovaherero, but their practices include various traditional songs, dances, and rituals that must be guided by these communities.

BIPA trademarking this symbol and inscription raises questions from the perspective of indigenous knowledge researchers and makes me examine the mistake BIPA made with such types of registration. I have looked at the purpose of the protocol that BIPA subscribes to, which is to protect holders of traditional knowledge from any infringement of their rights as recognized by this protocol. Therefore, one would like to know if BIPA has protected the traditional knowledge of the Ovaherero people by trademarking a community symbol and an identity inscription.

Why this is the issue of concern to me because Intellectual property law is largely European-derived, promoting specific cultural interpretations of knowledge, property, authorship, private property, and monopoly privilege. Indigenous peoples do not necessarily interpret or conceptualize their knowledge systems and practices in the same way or only through those concepts.

However, BIPA is failing the indigenous communities in Namibia by failing to fulfill its duty outlined in the same protocol, specifically Section 14 of the same protocol which states that the competent national authority with the responsibilities of awareness-raising, education, guidance, monitoring, registration, dispute resolution, enforcement and other activities related to the protection of traditional knowledge Organization, ARIP (2010).

Section 14 of the Swakopmund Protocol is of great interest to me because intellectual property law is essentially based on the distinction between tangible property rights in intellectual property products and intangible intellectual property rights as stated in Organization, ARIP (2010). While indigenous peoples often regard the intangible and tangible as inextricably linked. Therefore, Ovaherero communities using these symbols and inscriptions are intrinsically linked to the Red Flag association and Red Flag practices of song, horseback riding, dancing, and traditional dress.

This is of concern to the Ovaherero people and it is time they addressed BIPA and used international human rights instruments like the United Nations Declaration on the Rights of Indigenous Peoples, Article 31, 2007 to protect, preserve and promote their symbols and identity inscription. This is important as trademarks do not play an appropriate role in protecting indigenous peoples' traditional knowledge and cultural property.

As a result, trademarks are limited tools that do little to help protect limited aspects of indigenous peoples' cultural intellectual property claims Frankel, S. (2008). Knowing that trademark rights are like all intellectual property rights, and indeed property rights, in general, are not a right to own or control all uses, but a right to exclude others from certain uses Frankel, S. (2008).

Based on these articles, government agencies should exercise caution when dealing with intellectual property issues. BIPA should be aware that there have been ongoing debates and discussions at the World Intellectual Property Organization (WIPO) to address these issues of copyright, trademarks, designs, and/or indigenous communities' confidential information, given the concerns of indigenous peoples are not limited to one area, but can cover all parts of the intellectual property spectrum, Organization, ARIP (2010).  e.g. such as protecting traditional Inuit amauti (clothing), which would raise the legal issue when it comes to copyright or trademarks.

Lastly, I will elucidate the specific concerns of the Ovaherero people towards this registration of such trademarks. What if, the directors of the Herero red flags association begin to use these trademark rights to exclude others from certain uses of this symbol and inscription due to reasons known to them? What will be BIPA’s response to this matter?

 BIPA knows the situation of Ovaherero communities disputes and as an intellectual property agency that knows what was found in the 2016 study to assess the needs of intellectual property, which emphasizes that there are no laws and mechanisms to protect traditional Knowledge and Traditional Cultural Expressions Facilitating the Implementation of the ARIPO-Swakopmund Protocol to Protect Traditional Knowledge and Folklore Expressions; And address the concerns related to embezzlement and benefit-sharing and provide appropriate limitations and exceptions to promote access to copyright works for educational purposes and for people with visual impairments IP POLICY (2019 – 2024);

With this vacuum in the law, BIPA is taking bold steps to register this symbol and inscription that embodies the untold story of Namibian liberation without the prior informed consent of the Ovaherero people in the Diaspora and Namibia alike. Is this a way in which conspiracy theorists claim that governments are employing a divide and rule strategy against the Ovaherero communities? By directing their entire state machinery at dividing the Ovaherero nation, or how do you call this?

These divide-and-rule strategies of the then government of the day are not new to the Ovaherero nation but date back in history to 1896 when there was a dispute among the Ovaherero between Samuel Maharero and Nicodemus Kavikunua over the Paramountcy. In the run-up to the succession dispute, Theodor Leutwien was of the opinion that it was more advantageous for the German colonial state to deal with a politically divided society than with a closed unitary society. Therefore, Leutwien supported both leaders for chieftaincy Gewald, JB (2000).

The communities are not taking this action of BIPA as innocently carrying its duty but as an act to instigate further clashes between Ovaherero communities. This article is calling for BIPA to stop being used as a tool to further divide the Ovaherero nation. In order for BIPA to make this clear, they should revoke this certificate of trademark registration.

I rest my case. 

Written By: K.A. Koruhama

Computer Scientist and Anthropologist

Reference

Organization, ARIP (2010). Swakopmund protocol on the protection of traditional knowledge and expressions of folklore.

Frankel, S. (2008). Trademarks and traditional knowledge and cultural intellectual property. In Trademark Law and Theory. Edward Elgar Publishing.

Gewald, JB (2000). HERERO 'SELF-PEASANTIZATION'' No One Will Become Rich': Economy and Society in the Herero Reserves in Namibia, 1915-1946. By WOLFGANG WERNER. (Basel Namibia Studies Series 2). Basel: P. Schlettwein Publishing, 1998. Pp. 254. CHF 48, paperback (ISBN 3-908193-01-X). The Journal of African History, 41 (1), 131-172.

IP POLICY - 2019 – 2024. NATIONAL INTELLECTUAL PROPERTY POLICY AND STRATEGY 2019-2024. The Government of the Republic of Namibia.