America's Largest Native American Tribe Not 'Famous' Enough to Win Trademark Lawsuit

America's Largest Native American Tribe Not 'Famous' Enough to Win Trademark Lawsuit

Despite being the largest Native American tribe in the United States, the Navajo Nation lost part of a lawsuit against Urban Outfitters because they could not prove that they were famous enough to own the rights to the aesthetic.

Urban Outfitters is no stranger to controversy in their fashion designs. In 2001, the company introduced a line of "Navajo" clothes and accessories that clearly appropriated the tribe's aesthetic. The Navajo Nation filed a lawsuit in 2011, demanding all profits from the line or $1,000 per day per item. Nevertheless, they failed to prove that the "Navajo" term is "widely recognized by the general consuming public of the United States," according to New Mexico District Judge Bruce Black. Urban Outfitters had argued that the term was sufficiently generic to warrant its usage without permission. 

Meanwhile, there are still six counts pending against Urban Outfitters, Anthropologie, and Free People that allege trademark infringement, unfair competition, and false advertising. The argument in these counts is that the retailers intentionally created products that were made to look as if they were made by the Navajo Nation, which is prohibited by federal law. Photography is no stranger to appropriation of culture, and thus, it's important to follow both the legal and ethical evolution of its usage.

What's your opinion on this ruling? Is Urban Outfitters justified in appropriating the Navajo aesthetic and culture?

[via teleSUR]

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21 Comments

Christian Santiago's picture

Yes. It should not be a crime to creat things inspired by other things. It would be like saying white people should not be allowed to rap or black people shouldn't sing country. Does that mean westerners can't teach yoga? Or Asians can't play baseball? Now if they falsely implies he clothes were actually made by Navajo, then that's not ok. But it would be a dangerous precedent to say you have to be part of a culture to create something inspired by that culture.

Doc Pixel's picture

1) get your facts straight about TTIP: it's the US that's trying to force this asinine trade agreement upon the EU(!) in the interest of your pharma and agricultural imperialist industries.
2) so please explain how you should go about selling as an example, Parma ham... if it's not from the Parma region of Italy?

Parma-*style* ham is perfectly fine and legal. Keep it that way so as not to confuse the Real Thing™, or should we just start producing Coke™ however we deem fit, starting out with 1/10 of the sugar and no GMO corn syrup (for starters)?

Binky Bass's picture

Tough breaks ever since 1622 for any native peoples...Manifest Destiny 2016.

Binky Bass's picture

I can see where this is going...nice talk Pete..the end.

Jeff McCollough's picture

I was born in America. My parents were born in America. My grandparents were born in America. My great grandparents were born in America.

I think we all can be Native Americans now.

Joseph Hargrove's picture

The judgement doesn't seem to based on a sound knowledge of American culture. Anyone who follows the collectible markets, especially collectible textiles, knows that there is name recognition and a cachet associated with the name "Navajo." The use of the name for anything not created by the Navajo, or under their authority, is a form of theft.

Now, the patterns are just patterns. You may create and sell any pattern you want as long as it is not the same as or closely similar to a protected pattern. I can create a plaid pattern and sell it as long as it's not closely similar to a registered Scottish clan's tartan. But I can't say it is a specific clan's official or even unofficial tartan without exposing myself to the risk of legal action.

If Urban Outfitters had called them American Southwest, or Arizona (maybe?), or even Native American patterns, we wouldn't be having this discussion.

Doc Pixel's picture

If you as an American vote for those that pass the laws allowing the use of localities to be lawfully attached to foods and/or articles... that's your right. Just as it's the right of Europeans to protect their trademarks whatever they may be.

BTW: let me see someone in Florida start to sell California Raisins or Idaho Potatoes, and see how that goes over with their respective grower associations.

Native American colloquially does NOT mean what you think it does, since it's synonyms are Indian and Eskimo... even though I've read there are those like you that would like to change that common meaning.

Patrick Z's picture

Pete, please stop talking about the EU. You clearly don't know enough about it and its laws.
Certainly not about those protection laws you keep talking about.

Gabriel Scott's picture

I'm not entirely sure how I insulted you, I'm assuming you don't know what a troll is, you are likely new to the internet, I have provided a link which will help you understand my previous comment, and will likely aid you in future interactions with people on the internet! Don't worry, you will figure it out bud! The internet can be tough for some people but you'll get the hang of it :) http://www.urbandictionary.com/define.php?term=troll

Gabriel Scott's picture

Also, I have a sneaking suspicion that you can't comprehend how the word "Native American" has a definition beyond a literal definition. Sometimes it can be helpful to understand the context of a word. It seems obvious to me you are unaware of what the average American considers a "Native American" I have provided a link which should help you understand the context and common useage of the word, as it seems to escape you! :) knowledge is power, isn't it? https://en.m.wikipedia.org/wiki/Native_Americans_in_the_United_States

T Dillon's picture

Native American = ethnicity, cultural, and historical identity.
native American = any non-naturalized citizen. Also a descriptor that serves no purpose, given that it attempts to identify an overwhelming majority when the generic term "American" serves. Specifics dealing with sub-sets, i.e., Naturalized Americans, are useful descriptors.

If you object to a proper term of Native American (as opposed to the casual term), you need better grounds than personal confusion or vendetta against your personal perception of political correctness. Particularly when you have acceptance by the millions of folks whose ancestors were indigenous to this land, prior to the mass resettlement of European and African peoples. Its an accepted term, and accepted by the people it describes. Moreover, it is accuate as it describes the decendants of indigenouspeoples. Like it or not, peoples have a right to describe themselves. It may not liked, but it is the way of things.

T Dillon's picture

Unfortunately, being a Native American by ethnicity, culture, and historical identity cannot apply to your "90%" of the population, no matter what your claims of logic decry. I am sorry they took the name of Native American. I mean, they got there first. But now you want to take it from them? Sort of ironic.

I know that you love the term American, and I do to. Its great. However, there isn't a country of America. America is a region. I am a citizen of the United States of America. But North America is my continent. America is truly all of the western hemisphere, made up of North and South America.

You may think this all silly, but this is, by definition, semantics. Its important.

And like it or not, any group with shared commonalities can indeed name themselves. Discrimination is not inherently good or bad. And having a group that calls themselves Native Americans does not decrease me, or even you, in the least. I am sorry that how a certain group names themselves offends you. But it is well within their rights to do. It is simply unacceptable to take away their rights.

Moreover, in the US, there is a legal qualification to naming yourself a Native American. And unless you are on a tribal role, you are not, in fact, a Native American. You can call yourself a native American all you want. You just can never be a Native American.

If you don't believe semantics matter, well, that is unfortunate. You can keep your world view or ideology. But these semantics have proper definitions and legal standing.

Sorry if I hurt your feelings. But those are the limitations of being a Native American. Its a club we simply cannot join. Much like being of Italian, Irish, African, or Polish descent. In many ways, we simply are as we are born.

Doc Pixel's picture

Your opinions are NOT facts. Get over it. https://en.wikipedia.org/wiki/Americas

Campbell Sinclair's picture

Pete Miller then what should they be called then aye ? Im from NZ and I cannot possibly fathom were the hell you are coming from. its not enough that they are barely acknowledged in the USA at all now you want to deny them the Native American namesake ? on a technicality ?

Alex Cooke's picture

First of all, linguistically speaking, "Native American" is a compound noun, and therefore, it's treated as a single unit, so introducing the definition of "native" is irrelevant. The compound noun in question does indeed refer to a very specific group of people and thereby, it is not linguistically incorrect. The uncapitalized "native" in the version you use is not a compound noun and thereby does indeed refer to any person born within the borders of this country. They are two different terms, linguistically speaking.

Historically speaking, the term "American Indian" is far more incorrect. Columbus called the Caribbean people he met "indians" because he mistakingly believed he had navigated to the eastern shores of Asia. Thus, such a term completely erases and misattributes the actual heritage of those to whom it is applied.

That being said, prominent members of various tribes hold varying stances on the usage of the two terms. The majority are comfortable with both. Willow Abrahamson, a member of the Shoshone tribe, notes that "indigenous" is also preferred: "The reason I prefer indigenous is because being indigenous means you are of a place, one place on earth, which is unique to you. It identifies our peoples well because we referred to ourselves as from a place or location." If those to whom the term is applied are not offended, you do not have the right to be offended on their behalf.

Simply put, it is linguistically and historically speaking the most accurate term. Language is malleable and contextual, and it is a more historically accurate term than "American Indian." Thus, the proper usage falls to the preference of those to whom it is applied. You can call it "political correctness"; I call it "respect."

T Dillon's picture

Historically speaking, words have drastically changed their meanings over time. While have a strict view of history is all well and good, the historical truth of words and definitions have changed and evolved. It simply is. There really isn't any debate on this.

Mr Hogwallop's picture

Dang, Elizabeth Warren was right, she is a Native American! So maybe if I check that box I can get in on some of that casino money....

Derrel Ho-Shing's picture

"The use of the term native American applying only to American Indians needs to stop. It's not only by definition of the word native incorrect, it is also offensive to native Americans who are not American Indian."

American Indian is also incorrect. An Indian is someone from India.

K Bye

Ryan Graham's picture

It is tough to win a copyright/trademark lawsuit based on style, as you can not copyright that. Should the Cherokee people sue Jeep because they used their name? Passion and "appropriation," a term which is so horridly thrown around these days, is not enough to win a suit such as this.

If they 100% stole a pattern or design, then it would be a lot easier to sue and win. Being inspired by something, and even using Navajo, is not enough just because we may feel concern or sadness for past deeds. If a German line of clothing came out, inspired by old bavarian aesthetics, should Germany sue for a company using their country name?

There is a lot of grey area when it comes to copyright/trademark law, and a lot of it is for good reason. It's why Dani Diamond or Ryan Brenizer can't sue us for imitating their styles, even if we state flat out they were the direct inspiration.

Nelly Nancy's picture

i'm still stuck on comparing the navajo to a style of cheesecake