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
Source: MSNBC
Wonder how closely the various sports teams are watching this……all silly really.
And even happier after watching the vid… Perfect.
lol, pete. I’m a happier woman than I was 30 seconds ago… Thank you.
somebodies waiting on their royalty checks.
Navajo win
The Navajo sell products and have for many years. If UO decided to refer to their clothing as “Banana Republic” clothing, I think most of us would recognize a trademark infringement. This seems very similar. Judgment for plaintiff.
SwM,
I’m surprised the Navajo took this long to make their move. The have always been a very business-savvy group.
We have the same problem in Hungary. People’s wants to confuse goulash with polish stuff. We ate much more diverse than them.
Blouise, I agree. It is a distinct form of art. My husband collects Navajo art and pottery. We go to New Mexico to get it.
I’m with The Navajo Nation on this one.
However, I see the sense in the point Bette Noir addressed: ‘Unlabeled geometric patterns are a different matter. They shouldn’t be called “Navajo” if they’re not, but they should be available to any artist who cares to use them. I believe the usual course of action is to call them “Southwest.”’
The lawsuit has nothing to do with Copyrights, it is a Trademark dispute.
“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.”
Thanks. I needed a good chuckle after reading that Mueller article.
Justice Holmes1, March 8, 2012 at 6:58 am
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I’m waiting for the Common Sense Zombie….
If colleges can trademark the schools….. Then why is it unreasonable for native Americans……
Of course the Navajo have a right to exclusive use of their name. You can’t call wine Champagne if it doesn’t come from Champagne, and you can’t call cheese Roquefort unless it comes from Roquefort. They’re trying to keep their name meaningful and valuable. No complaint from me.
Unlabeled geometric patterns are a different matter. They shouldn’t be called “Navajo” if they’re not, but they should be available to any artist who cares to use them. I believe the usual course of action is to call them “Southwest.”
The Navajo’s are just going with the copyright flow!
“However, the tribe is pursuing a claim that is by no means out of the norm for contemporary lawsuits.”
This sums up the problem that the proliferating use of copyright protection has brought about has caused our legal system. The Navajo claim is not an outrageous one given the overly broad use of copyright protection now being pursued and seemingly upheld. The tribe merely wants to get in on the benefits now derived from restricting usage of copyrighted items. There is much to be said for the Navajo to be able to restrict and/or license the use of their tribal symbols, particularly since they have their own industry.
The folly of this lies not with the Navajo, but with the broad extension of copyright law, to the point that I feel is has gone way beyond the intent of its origins. With the minions of wealth controlling Congress to do their bidding, copyright protection potentially will be a backdoor method of limiting First Amendment rights and advancing the cause of a corporatist run society.
I think the wind talkers speak the truth…..
It isn’t Navajo until Haines says it is Navajo.
Absurd. Unfortunately, in a Country where I can patent your genes it is hardly shocking.