We have another trademark case that raises the question of the scope of our current trademark laws. The Navajo Nation is suing Urban Outfitters is infringing its trademark by using its name and tribal-type patterns on merchandise. The mere use of the word “Navajo” and “Navaho” is considered a trademark violation by the tribe as well as the use of symbols and marks that “evoke the Navajo Indian Tribe’s tribal patterns, including geometric prints and designs fashioned to mimic and resemble Navajo Indian and tribal patterns, prints and designs.”
The tribe also alleges violation of the federal Indian Arts and Crafts Act. Readers of this blog are aware of my view that our trademark and copyright laws have gone out of control and now stifle the very creativity that they were meant to protect. The Navajo name and patterns are part of the American culture. I do not see how any use of the name or particularly the patterns can violate any reasonable definition of trademark. I certainly do not see in these advertisements how, according to the Complaint, “Urban Outfitters’ display and sale of its goods in manners that falsely suggest they are the product of the Navajo Nation.”
Navajo patterns are an art form that has been incorporated into many different types of works. It is akin to trademarking cubism or some other form of art. We recently saw the copyright claim over a public scene in London that was captured in a way similar to a famous photograph. (The lawsuit raises the question of whether the Zia have copyrighted the symbol on the New Mexico flag).
The tribe has used the name Navajo since 1849. The complaint below states that the Navajo Nation has currently registered 86 trademarks using the NAVAJO component. It includes alleged unfair competition under the Lanham Act with its own marketing and commercial sales. I am particularly stuck by the claim of a violation under The Indian Arts and Crafts Act, which prohibits non-Indian businesses and individuals from misrepresenting that their goods are the product of an Indian tribe, or American Indian or Native American person(s). This case would radically expand the meaning of the statute to include virtually any inclusion of a tribe name in a product as falsely suggestion that it is an Indian product.” 25 U.S.C. § 305e(a).
Urban Outfitters sells such items as a “Navajo Nations Crew Pullover,” a “Navajo Hipster Panty” and a “Navajo Print Fabric Wrapped Flask.” I am not sure what tradition Navajo Hipster panty or flask would look like, but I doubt there is much confusion among customers with Navajo traditional jewelry and merchandize. A search of the internet of “Navajo patterns” came up with 5,570,000 hits with hundreds of different art and merchandize sites. This ranges from fashion models to car covers. There is even a “Navajo Pattern Afghan” — I am not sure who would get to sue first on that one, the Navajos or the Afghans.
Once again, Congress appears content to allow copyright and trademark claims to expand exponentially without considering reasonable reforms. While I am sympathetic to the tribe’s concerns, I do not believe that this is a reasonable use of trademark laws. However, the tribe is pursuing a claim that is by no means out of the norm for contemporary lawsuits.
Here is the complaint: Navajo