Australia: Non-Indigenous business fails in bid to trademark Aboriginal bush medicine

The Australian Broadcasting Corporation Reports that A central Queensland business has failed to obtain exclusive rights to the Indigenous name of a traditional bush medicine.


The ABC Story


This story contains the names of Aboriginal and Torres Strait Islander people who have passed away.

Key points:

  • The Pittosporum angustifolium plant is commonly known as Gumby Gumby, a name which Indigenous people are believed to have used as far back as the Dreamtime
  • Indigenous elders and business owners have welcomed the news that a trademark application by two non-Indigenous people, for exclusive rights to the name Gumby Gumby, has failed
  • A group of 11 academics have now also requested a review of a patent owned by one of the applicants to use Gumby Gumby products in medicine

Pittosporum angustifolium, a tree with orange berries, known as Gumby Gumby, Gumbi Gumbi, or native apricot, has been used in Indigenous bush medicine across inland Australia for hundreds of years.

In 2017, Katja Ada Amato and Klaus Von Gliszczynski applied for the trademark in a bid to gain exclusive rights to the plant’s Indigenous name.

Klaus Von Gliszczynski owns the patent to produce products from the leaf’s extracts, and Katja Ada Amato owns Yeppoon-based retailer, which sells products derived from the leaf extracts of the Pittosporum angustifolium plant for hundreds of dollars.

But now, almost three years after it was initially filed, their trademark application has failed.

At the same time, 11 academics have applied for Mr Von Gliszczynski’s patent, to use Gumby Gumby products in medicine, to be reviewed.

Term in use for ‘thousands of years’

Intellectual Property Australia said the trademark case lapsed, or formally expired, because the applicants did not answer objections that had been made against it.

“Objections were raised on the basis of research showing that Gumby Gumby is a commonly used name for the Pittosporum angustifolium plant, which is a shrub or small tree growing in inland Australia,” an IP Australia spokesman said.

“The applicant was given an opportunity to overcome these objections but was not able to do so within the timeframe.

“If the applicant or another person applies for the same trademark in the future it is likely to face the same objections.”

Lee Doherty, a Pallawa woman who owns another Gumby Gumby business based in Brisbane, said she is pleased with the outcome.

Four years ago Ms Doherty received a letter from the legal representative of Gumby Gumby Yeppoon, telling her to cease and desist operating because her business was in breach of their patent.

At the time she hired her own legal representation and was able to operate again.

The recent trademark failure means Ms Doherty is allowed to continue trading using the words Gumby Gumby freely.

She said that is a win for Indigenous business owners everywhere.

“You have non-Indigenous people that were trying to trademark an Indigenous word that is [used] to describe a medicinal plant, a bush food,” Ms Doherty said.

“Which pretty much just leaves the floodgates open for other people to come in and trademark other words that Indigenous people have been using for thousands and thousands of years.

“It was quite distressing to think that a word that has been used for such a long time potentially was going to be taken away.”

‘Are they going to sue me?’

Steve Kemp is an elder of the Ghungalu people around central Queensland who continues to practice traditional medicine.

He lives on country at Woorabinda and freely hands and mails out wild-grown leaves to sick people.

Mr Kemp said he is pleased the application has expired because it goes against the benevolent nature of Indigenous medicine.

He said what is most galling for him is that Indigenous people were not consulted, but could have been be excluded from their own culture.

“If I go to produce Gumby Gumby and sell that, are they going to sue me?” Mr Kemp said.

“For them to just take that word and give nothing, but if they had said ‘hey look we’re going to give you that percentage and we’re going to do this for your people’, we probably would have given them the name.”

Non-Indigenous woman believes her business invented Gumby Gumby

In a statement, one of the applicants, Ms Amato from Gumby Gumby Yeppoon, said she and Mr Von Gliszczynski created the name in the 1990s.

“There is no evidence that the Gumby Gumby name is associated to the plant Pittosporum angustifolium or with any of the 250 Indigenous languages,” she said.

“This is a name we invented straight at the beginning when we first started our research in the late 90s. Our business over the last 20 years has made the name a commonly known name.”

Ms Amato said the business decided to let the application lapse.

However an academic article published by Routledge Research in Intellectual Property 2018 strongly suggests the name was used as far back as the Dreamtime of the Yirendali people of the Galilee Basin, in western central Queensland.

“Mr James Hall, a Yirendali man is recorded as explaining the centrality of Gumbi Gumbi to Yirendali Dreaming: Prairie Creek,” the article reads.

“The Plains Homestead water hole on the Prairie river, is the creation place for the Yirendali people, it is associated with the ceremonial bush medicine, common name ‘gumbi gumbi’.

“It is the story about the gumbi gumbi bush spirit, a woman who lived alone by the water hole, and one day while out gathering food, she came across a male bush spirit.

“They courted and fell in love, and when the gumbi gumbi spirit lady fell pregnant, she gave birth, and the baby came out of the seed pod.”

Steve Kemp also remembers the name being used by his Uncle, Charlie Munns, who lived when Woorabinda was created in 1927.

“Uncle Charlie Munns, he was the medicine man, so all the diseases that were happening back then, Uncle Charlie would boil up the Gumby Gumby,” Mr Kemp said.

“You’d drink it and boil the leaf up and drink it like tea to cure your cold, fix your tuberculosis, skin irritations.

“I was lucky enough that [I had] my dad to pass all that knowledge onto me — he taught us in parrot fashion, drumming it into us … I used to get sick of it, but now it’s stuck in my mind.”

The ABC asked Katja Amato if any Indigenous people were consulted during the development of the product or business.

“The development of my products have been through the dedication of a naturopath and researched utilizing international research centres in renowned universities and with Australian government departments and consultants,” she said.

Academics apply for review of patent

Matthew Rimmer, a professor of intellectual property and innovation law at the Queensland University of Technology, said the common use of the name may have been a factor in the decision.

“It’s long been the case in intellectual property in agriculture that you can’t use trademarks to monopolise plant names,” he said.

“You have to come up with new distinctive names that you can market.”

Dr Rimmer said the case has drawn attention to how Indigenous intellectual property is handled by IP Australia.

“The dispute has raised larger questions about the use of Indigenous intellectual property and how that is protected in Australia,” he said.

“There’s also further questions about intellectual property and biodiversity and how that’s dealt with in terms of the system.”

Earlier this month a group of 11 academics lodged a request for IP Australia to review Ms Amato and Mr Von Gliszczynski’s ownership of the patent to use Gumby Gumby products in medicine.

Though not a signatory of the request, Dr Rimmer is familiar with it and said the group is arguing that what has been patented is not completely original.

“[They] argue that the patent should be cancelled because there is a lack of novelty and inventive step in terms of the invention,” he said.

“The argument is prior art, both botanical prior art and Indigenous prior art that pre-dates the application.

“The third-party re-examination request is also raising questions about whether the applicants are really the inventors in respect of Gumby Gumby.

“Hopefully the Gumby Gumby case will be an impetus for IP Australia and the Australian Government about how better they can adapt our laws and regulations and guidelines to deal with Indigenous intellectual property.”