Is Disney’s trademark ‘Hakuna Matata’ a cultural appropriation?

Ahead of its live-action remake of the famous film ‘The Lion King’, Disney is facing major trademark troubles for its registered mark HAKUNA MATATA in Class 25 for T-shirts and footwear (Registration No. 2700605 in USPTO). The phrase, which is of Swahili origin, translates to ‘no problem’ or ‘no troubles’. Swahili is a language which is spoken across Eastern Africa and is the major language in countries like Uganda, Rwanda, Congo and Kenya.  

East African activists headed by Zimbabwe’s Shelton Mpala have accused Disney of attempting to appropriate African culture. Mpala has started an online petition demanding that the company abandons the trademark. The three-weeks-old petition, as of date, has been signed by more than 150,000 people. The petition states “Disney can’t be allowed to trademark something that it didn’t invent.” It also alleges that the registration is “purely on greed and is an insult not only to the spirit of the Swahili people but also, Africa as a whole”. 

So why are such trademarks granted and why is there a backlash? The answer lies in the nature of trademark law itself. Answer to the 1st question is that trademarks are Class specific and territory specific. The person who registers a mark does not gain the right to exclusive use across the world, it only gives a right over the word only in a specific area and that too in a specific Class of goods/services. The backlash is because trademarks give exclusive usage rights to owners who can enforce it against others. If a trademark is a common term in a country, restricting its use in that country can be a tough task.

It is to be noted that Disney had also tried to register the Mexican phrase Dia de los Muertos associated with the famous festival ‘Day of the Dead’ for its animated movie later called ‘Coco’. Disney was forced to abandon the phrase due to similar online petitions.
 

More than the trademark aspect, the issue at present, prima facie is of not the legality of the registration but bad publicity. 

Takeaways

1. There have been multiple such cases of alleged appropriation by individuals of a particular country. 
   • Recently ‘Bula!’ which is a common greeting in Fiji was trademarked in the US for pubs and bars and there was a similar kind of backlash.
      
   • ‘Aloha’ which is the Hawaiian greeting is also a registered trademark for a restaurant chain. So it is common to register such terms in the US.
      
2. Trademark experts said the talk of colonialism and robbery was overwrought, and that the trademarking of phrases, particularly those from other languages, is commonplace.^[1] While there have not been any instances of a similar nature in India it is to be noted that popular Indian language words and phrases have found themselves to be registered as trademarks in the US. E.g. NAMASTE is registered as a word mark in Class 3 for laundry services in the USPTO (Registration No. 4768914).
    
3. Popular words and phrases such as ‘Yahoo!’, ‘Vaya con Dios (Go with God),’ ‘Merry Christmas’ and ‘Seasons Greetings’ are all registered trademarks which are also used by people without a hitch.
    
4. Hakuna Matata was the chorus of the famous Kenyan song ‘Jumbo’ by The Mushrooms in 1982. However, it got an international recognition through The Lion King where the characters Timon and Pumbaa teach the protagonist Simba the Hakuna Matata way of life and sing a song about it. Since then the term has been associated with the movie and Disney produces merchandise like T-shirts, shoes, accessories etc. consisting of the now controversial phrase.
    
5. A trademark is a source identifier. If a mark is chosen from popular words of a foreign language, it should not be allowed registration across the world, especially in the country(s) where such language is used. The HAKUNA MATATA mark is not registered in any country where Swahili is spoken. If Disney attempts at the same it is very likely that these applications will be rejected on the grounds of non-distinctiveness.

^[1]Freytas-tamura, Kimiko De. “Hakuna Matata™? Can Companies Actually Trademark a Phrase Like That?” The New York Times, The New York Times, 20 Dec. 2018, www.nytimes.com/2018/12/20/world/africa/hakuna-matata-disney-trademark.html.