Gumby Gumby trademark bid angers Indigenous people who want intellectual property rights reform

Posted April 09, 2019 08:03:21

Aboriginal people and experts are calling for national reform around who can claim intellectual property rights to Indigenous knowledge.

Key points:

  • A central Queensland couple are waiting to hear whether they have exclusive rights to the name Gumby Gumby
  • The name refers to a species of tree which Indigenous people have used for generations to heal sickness
  • An elder says the principle of people legally reserving Indigenous language is wrong

Under current intellectual property (IP) law, any Australian individual or company can apply for rights to Aboriginal products or language, referred to as Indigenous knowledge.

Ghungalu elder Steve Kemp said this was problematic for his people, who were waiting to hear whether a central Queensland couple would be granted the exclusive trademark to the name of a plant used by his people for generations.

Exclusivity ‘the wrong way to go about medicine’

Gumby Gumby means “woman woman medicine” in Ghungalu language — an Aboriginal people of central Queensland.

The words also mean “bush medicine” and “medicine tree” in different languages, but the name universally referred to a species of tree which Indigenous people around Australia have used for generations to heal sickness.

Elder Steve Kemp said he learnt about it from his father and grandfather.

“We learnt the medicine back in 1927 when Dad came to Woorabinda at six years of age,” Mr Kemp said.

“They had no hospital, no housing, and so his old uncle used to cure every disease known to man at the time — and Dad had to get on the horse because old uncle was too old.

“He told six-year-old Dad to go and get the medicine to cure the people.”

In 2008, Katja Amato and Klaus-Otto Von Gliszczynski, owners of Yeppoon-based business GumbyGumby.com were granted a patent over the exclusive production of leaf extracts of Pittosporum phillyraeoides and its use in medicine.

Now the owners of GumbyGumby.com are waiting to hear whether they have exclusive rights to the words Gumby Gumby.

They have applied for the trademark to the name.

Elder Steve Kemp said the principle of people legally reserving Indigenous language was wrong.

“Why should people come in and steal our language? It’s all about money, and that’s the wrong way to go about medicine, it should be all about love. Give it away,” Mr Kemp said.

Mr Kemp said he believed Indigenous culture placed value on benevolence.

He mails the sacred tree leaves to people for free when they ask for it.

“That’s what all old Aboriginal people thought and that’s why they told all these people about the medicine,” Mr Kemp said.

“The other part is, they [GumbyGumby.com] didn’t consult with Aboriginal people.

“These people should be negotiating with Aboriginal people, saying ‘okay we want to take this, but we want to give something back to the community of Woorabinda’, for instance.

“Are they going to come and employ us to harvest the trees? That’s what I’m disappointed in.”

Language trademark ‘cultural appropriation’

Palawa woman Lee Doherty runs a business selling, among other products, Gumby Gumby capsules.

She said about four years ago, she received a letter on behalf of Yeppoon-based GumbyGumby.com telling her business was in breach of their patent.

“Of course, when you get a cease and desist letter, I went into panic mode very quickly because I had a lawyer pretty much saying ‘stop doing what you’re doing — you’ve violated a patent’,” Ms Doherty said.

She hired a lawyer who specialised in Indigenous intellectual property to defend her business and was now operating again.

She said the couple’s application to trademark Indigenous language was disturbing.

“Our language doesn’t belong to just one person that decides, you know, this is a word I’m going to keep for myself,” she said.

“I believe that our words should be able to be used by everybody.

“As to having a trademark — that is cultural appropriation.

“That we actually pay them money to use that word which I think is an absolute insensitivity when it comes to language.

“The Indigenous people in Australia have lost enough and for the couple to come in here and take our language is a disgrace.”

Expert says cooperation reform necessary

Intellectual Property Australia, the Australian Government agency responsible for assessing rights applications, is looking into how it might enhance Indigenous economic development through IP.

Last year the agency released a discussion paper to find out what gaps existed in current IP regulation.

Earlier this year, it also conducted a separate series of consultations about how the agency could promote the economic potential of Indigenous knowledge.

General manager Michael Schwager said there were several suggestions put forward.

“When we look at granting an IP right, it’s important to know what knowledge already exists out there as to whether an IP right is appropriate,” Mr Schwager said.

“To that end, some sort of database of Indigenous knowledge might be beneficial … so that when we’re searching for existing knowledge bases we can understand what’s already in existence.”

Indigenous Intellectual Property legal specialist Terri Janke was commissioned by IP Australia to compile the discussion paper.

She said it was imperative that Indigenous people be involved in any commercialisation of traditional knowledge.

“We need new laws to recognise Indigenous peoples’ connection with words that are associated to plants and the plants themselves,” Ms Janke said.

“When outsiders find out the healing properties they look to patent or trademark the healing properties, and the words, and use them commercially. They stop Indigenous people from being able to use their assets for their own commercial purposes.”

Ms Janke said there were numerous examples where the intellectual property guidelines had failed Indigenous people, but said the case of the Chuulangun Aboriginal Corporation was an outstanding example of cooperation.

The Cape York Indigenous people partnered with the University of South Australia and were driving research and commercialisation of medicinal plants.

Ms Janke said it would be prudent to introduce a requirement to involve traditional owners in any commercialisation process.

“What would be better if there was some trigger for agreements to be made with Indigenous people, so that if someone was to look at commercialising Indigenous plant knowledge they would have to enter into an agreement with Indigenous people and make sure that there was access under conditions,” Ms Janke said.

“So that there was cultural respect for how you access the plant but also benefit sharing — that Indigenous people can benefit from the commercialisation.”

The outcome of the trademark application will be handed down in June, followed by a two-month opposition period if successful.

The owners of GumbyGumby.com have declined the ABC’s interview requests.

Please note: this is not intended to be medical advice. If you are seeking medical advice, please see a doctor.

Topics: government-and-politics, health, indigenous-policy, indigenous-culture, indigenous-protocols, laws, law-crime-and-justice, bush-tucker, rockhampton-4700, yeppoon-4703, sydney-2000, woorabinda-4713, brisbane-4000, adelaide-5000

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