A precedent-setting move to trademark the All Black haka has been turned down in what is a major body blow for the iwi who say they are the rightful owners of one of the country's most iconic symbols of national pride.
A trust representing Ngati Toa and other descendants of warrior chief Te Rauparaha, who wrote Ka Mate, has been fighting since 1998 to trademark the haka.
But after years of legal wrangling, the Intellectual Property Office of New Zealand (IPONZ) has refused the application - forcing the applicants to decide whether to abandon the battle or take it to another level.
The All Blacks, who have never claimed ownership of Ka Mate, have Ngati Toa's permission to perform the haka. But a spokesman for Ngati Toa, Taku Parai, said the iwi, whose boundary runs from Porirua in the North Island to Nelson and Blenheim in the South Island, wanted the NZ Rugby Union to expressly acknowledge them as the rightful owners of the haka's intellectual property. The applicants - officially the Raukawa Trust - have previously threatened legal action against anyone else who used it for commercial gain.
Mr Parai said Ngati Toa had a genealogical claim to the intellectual property of the haka and should be involved when it is used for profit.
But the iwi did not object to widespread public use of the haka and didn't want to stop average Kiwis from performing it, he said.
"For all New Zealanders who wish to participate and use the haka - not a problem.
"But when it comes to commercial activity we feel strongly that we need to be sitting down at the table."
He said Ngati Toa hoped the matter would go to a hearing so they could argue their case.
IPONZ and the applicants have been at loggerheads over whether the applicants needed to show that the haka was distinctive or whether IPONZ had to prove it was in common use.
In a significant development in December, IPONZ formally objected to the application, saying Ka Mate was widely recognised here and abroad as representing New Zealand as a whole and not a particular trader.
The applicants were given until mid-April to reply or request a hearing, or the application would be considered to have been abandoned.
But applicant lawyer Peter Verboeket responded with an official information request for the legal advice taken by IPONZ and an appeal to the Ombudsmen when that request was rejected. He then asked for an extra three months for the applicants to decide what action to take.
In the latest letter on the case file - obtained by the Herald On Sunday under the Official Information Act - IPONZ proposed putting the application into abeyance until the Ombudsmen had ruled.
Mr Verboeket refused to comment on the application. The Raukawa Trust Board did not return calls.
The application was originally filed by Ngati Toa member Oriwa Solomon, who later handed it on to the Raukawa Trust Board.
As part of its objection to the application, IPONZ said it was legally "a scandalous matter" because the Raukawa Trust Board did not necessarily represent Ngati Toa - meaning that registration of a trademark had the potential to offend the descendants of Te Rauparaha.
But Mr Parai said the name in which the application had been lodged was immaterial.
"We are one and the same people," he said.By Patrick Crewdson