Sometimes mistakes are made by accident. Sometimes mistakes are made on purpose (which, I guess, makes them not really mistakes). And sometimes, mistakes are made by, um, stupidity. File this one under stupid.
The Attorney General of the Navajo Nation recently sent Urban Outfitters a cease-and-desist letter, demanding that the corporation stop using the Navajo Nation’s trademarks to sell clothing and accessories that are completely unrelated to the Navajo people. Urban Outfitters’ (extremely tasteful) line of 24 “Navajo”-themed items included such surefire crowd-pleasers (pictured below) as the “Navajo Hipster Panty” and the Navajo flask — especially charming, I’m sure, to a Native American community that has long struggled with alcoholism and whose alcohol-related mortality rate is nearly 12%. Or maybe the style-makers at UO just hadn’t heard.
But Urban Outfitters’ “Navajo” product line wasn’t just culturally insensitive (not to mention egregiously ugly). It was also probably a violation of both trademark law and the Indian Arts and Crafts Act of 1990.
As we’ve oft repeated here at Law Law Land, trademark law protects the name or mark associated with the product to which it is attached. This allows consumers to easily identify the origin of the products or services. Typically you see a company registering its trademark to put on a product, like the Coca-Cola Company registering “Coke” to put on their delicious soda (and by delicious soda I mean Diet Coke, none of that other weird Coke Zero or Coke Mineral crap). This case is a bit unique in that the Navajo Nation registered the word “Navajo” for use in at least 12 different classes, including clothing and online retail store services. So the trademark’s origin is not a company but an actual tribe/nation.
By labeling its products as “Navajo,” Urban Outfitters could be accused of selling products confusingly similar to those from the actual Navajo Nation. Consumers at the store might think that, for example, the Navajo Hipster Panty was actually related to the Navajo Nation and created by one of its horn-rimmed glasses-wearing artisans. (Although I bet I’d be hard pressed to find a Navajo who’d be willing to take credit for that monstrosity. All the more reason the Navajo Nation shouldn’t want that stuff out there in their name.) While this case probably doesn’t warrant a full walk through the seven to nine factors (depending on jurisdiction) courts look at in assessing alleged trademark violations, the fact that Urban Outfitters was selling Navajo-styled items under the registered Navajo name means that the Nation would likely have a very strong case.
The Urban Outfitters items might also violate the Indian Arts and Crafts Act of 1990. The Act states that it is “illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.” However, the Act is limited in its protection as it only covers art and crafts, and most of the Urban Outfitters items are clothing.
The Navajo community is unsurprisingly upset at Urban Outfitters (I would be too if I was associated with those socks). Indeed, the first person to bring this issue to national attention was a Native American woman, Sasha Houston Brown, who wrote an open letter to Urban Outfitters on the blog Racialious. She hilariously described the Navajo items as “appear[ing] as though recording ‘artist’ Ke$ha had violently exploded in the store, leaving behind a cheap, vulgar and culturally offensive retail collection. Plastic dreamcatchers wrapped in pleather hung next to an indistinguishable mass of artificial feather jewelry and hyper sexualized clothing featuring an abundance of suede, fringe and inauthentic tribal patterns.” The bonus kicker? 22 out of 24 of those “cheap, vulgar, and culturally offensive” knock-offs were made cheaply overseas, rather than purchased from real Navajo artisans (with a real need for the business).
The good news is, it seems the cease-and-desist letter and bad press worked, as Urban Outfitters quickly removed the name “Navajo” from all of its items and replaced it with “Printed.” Too bad they couldn’t remove the ugly from them too.a