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Etherington, Simon --- "Aboriginal' Style Art" [2003] IndigLawB 29; (2003) 5(24) Indigenous Law Bulletin 18

‘Aboriginal’ Style Art

by Simon Etherington

The Australian Competition and Consumer Commission (‘ACCC’) has commenced proceedings in the Federal Court against Australian Icon Products Pty Ltd (‘Icon’) alleging that Icon has engaged in conduct likely to mislead or deceive consumers in contravention of the Trade Practices Act 1974 (Cth).

Icon is a Queensland based company that describes itself as ‘The World’s Largest Wholesaler & Distributor of Aussie Souvenirs’. Icon sells and promotes souvenir products nationally and internationally. Many of the products Icon sells are hand-painted souvenir products featuring Aboriginal-style motifs and designs including didgeridoos, boomerangs and terra cotta plates.

These products are made by a pool of artists, some of whom are Indigenous artists but some of whom are non-Indigenous.[1] Icon admits that it has had the practice of selling these products with stickers and labels attached that say ‘authentic’, ‘certified authentic’ and ‘Aboriginal Art’ despite the fact that only some of the artists Icon uses to make the products are actually Indigenous. The ACCC says that these labels are likely to mislead consumers into thinking that certain products were ‘Aboriginal Art’ or ‘Australian Aboriginal Art’ when in fact those products were not painted by persons of Aboriginal descent. Furthermore, the ACCC says that none of these products had in fact been certified ‘Aboriginal’ or undergone any certification process at all. Icon has accepted that the labels ‘might mislead customers’[2] but they say this was not their intention.

The ACCC is asking the Federal Court for declarations that Icon’s indiscriminate use of the labels ‘Aboriginal Art’, ‘authentic’ and ‘certified authentic’ across products which may or may not be made by an Indigenous artist is likely to mislead consumers. To fix the problem, the ACCC is asking the Court for orders that Icon:

The case has not yet progressed to trial. However, Icon has agreed to Federal Court interim orders that it must not use the descriptions ‘Aboriginal Art’ or ‘authentic’ to describe products it markets or sells unless Icon is sure that the artists that made the product are ‘of Aboriginal descent’. Icon has also agreed to send a letter about their possibly misleading conduct to all their retailer customers and to post a copy on their website.

Once the case is heard, it will be interesting to see what the Court has to say about Icon’s use of the words ‘authentic’ and ‘Aboriginal Art’ and whether they are misleading. Also interesting to see will be the orders the Court is prepared to make to remedy the misleading conduct, if the Court finds that there has been any. Icon is an important player in the souvenir market and the outcome of this case will likely have ramifications for practices throughout the industry.

Simon Etherington is a Legal Officer at the Arts Law Centre of Australia.

[1] The ACCC alleges that only 11 of 38 artists were Aboriginal or of Aboriginal or Torres Strait Islander origin.

[2] This statement was made in a letter addressed to Icon’s customers and annexed to the orders the Federal Court made on 4 April 2003.

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