Sunday, July 4, 2021

The J’ouvert Bacchanal

(First published in the Business section of the Jamaica Monitor June 27, 2021) 

This past week my social media timeline got hit a few times with the story coming out of Trinidad and Tobago of Michael B Jordan, of the Black Panther film fame, and his recent “ownership” of the trademark “J’Ouvert”, an ownership acquired, at least in the United States of America by virtue of its registration with the United States Patent and Trademark Office (USPTO). Jordan has been accused of cultural appropriation. I looked at the registration myself, and excluding attorney fees, ownership of the name in the single class for which he is said to apply in September 2020, it likely cost him $350 USD for a standard registration. Barring any objections that require further legal intervention, his financial obligations to the US government as far as acquiring and maintaining the name he hoped to build into an alcohol brand would have been negligible, possibly $525 USD payable in the next ten years. It doesn’t seem like a bad investment considering what he could earn from it. Isn’t it amazing how inexpensively one could lose “ownership” of a part of one’s heritage? Some of my Trinbagonian friends are upset, and I understand completely.

Source: Screenshot Michael B Jordan's Girlfriend, Instagram Stories 

As a result of public outcry, not least of which from Nicky Minaj herself, the poor unlucky soul as I imagine one former colleague professor of mine saying, get ketch, and Jordan by Wednesday morning had issued an apology and stated that he will no longer be using this name in this fashion. Jordan is indeed unlucky, because from the information I have seen on the registration of “J’ouvert” on the website of the USPTO, there have been at least five such registrations for use in commerce, from as early as February 2006. The listings use the term “J’ouvert” or “Jouvert”. Perhaps to the pleasure of my Trinbagonian friends three of them are now listed as dead, meaning they were once in use in commerce but for some reason the owners have abandoned their use.

Of all the registrants only one was from the Caribbean, and that entity gives a Barbados address, and they used their registration to brand air fresheners. The other trademark registrants including Jordan’s registration hail from Florida, New York, California and Texas. Some of these owners may, in fact, have been from the Caribbean, I am not able to tell from the information given, but they represent an interesting business mix to apply the brand “J’ouvert”. Their businesses included an entertainment event, audiovisual recordings and digital media, and restaurant and bar services in addition to those I mentioned above. So, from all indications Jordan’s high profile meant that he was just the poor unlucky soul who would ketch hell for doing what others have done and got away with undetected. And, there is no question that him being an American is a factor for the claim of cultural appropriation.

Source: Michael B Jordan, Instagram

One might ask then, why are these types of trademark applications happening outside of the countries of origin? Why is it taking diaspora residents or foreigners to recognize and seize upon some of these commercial opportunities that our cultures in the Caribbean possess? This week it was Trinidad and Tobago, but those of us from Jamaica are also familiar with this story. I wonder how many of these trademark applications have been attempted in the Caribbean, and if the applications were made, would they have been granted? I won’t attempt to answer these questions here since I’m not a lawyer, and I do not wish to be seen as giving legal advice. I have a fair idea of where this discussion could go, and I think the whole situation opens the space for conversations we should be having about the future of our cultures, from a business perspective, here in the Caribbean.

In my view there are two fronts on which we could approach situations like these, on the offensive and on the defensive. I have no doubt that we ought to be putting out products and services branded with names that matter to us, while we also proactively protect against the exploitation of names and brands that are sacred to our cultural spaces. Entertainment and sport attorney, Carla Parris, executive producer of “The Business of Carnival”, offered us some sound insight that might be useful in helping to prevent another case of this kind of cultural exploitation, since Jordan has at this point promised that he will not go forward with the name “J’Ouvert”. First, she argues that we proactively object to these applications on the grounds of cultural appropriation and cites examples, and second, she argues for greater discussion on the area of “Traditional Cultural Expressions and Traditional Knowledge (TCEs)” within the Caribbean. No doubt these are discussions that cannot happen soon enough, we all need to know more.

Source: Carla Parris, Facebook

Carla Parris has some very good advice for businesses in the Caribbean that I would commend to business owners here in Jamaica. She suggests that before you market your goods and services you conduct an intellectual property (IP) audit and seek the services of a qualified IP attorney if you need the help. Take heed. When you compare the financial outlay I mentioned above to what you may be called to lay out in defense of a brand under challenge, you may be pleasantly surprised.

Kam-Au Amen has several years of combined industry experience across the areas of business management, brand licensing, media production, and eCommerce. He is a researcher of African and Caribbean entertainment and cultural enterprise management, and is a former Deputy Director of Culture in the Ministry of Culture, Jamaica. He has also served a member of the Entertainment Advisory Board. He is the conceptualizer and first coordinator of the pioneering BA in Entertainment and Cultural Enterprise Management at the University of the West Indies (UWI), Mona.