Urban Outfitters And The Navajo Nation: What Does The Law Say?Susan Scafidi in Jezebel, October 13, 2011
Sasha Houston Brown's open letter to Urban Outfitters regarding its use of the word "Navajo" in its product names may or may not have inspired company C.E.O. Glen Senk to fauxpologize in the comments — the company still won't confirm or deny whether it was really Senk or someone impersonating him — but it's certainly kicked up quite the media storm.
Brown wrote, in part:
[A]s a Native American woman, I am deeply distressed by your company's mass marketed collection of distasteful and racially demeaning apparel and décor. I take personal offense to the blatant racism and perverted cultural appropriation your store features this season as "fashion."
All too often industries, sports teams and ignorant individuals legitimize racism under the guise of cultural "appreciation". There is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, Staring at Stars Skull Native Headdress T-shirt or the Navajo Hipster Panty. These and the dozens of other tacky products you are currently selling referencing Native America make a mockery of our identity and unique cultures.
Brown says she called the number that "Glen T. Senk" left in the comment thread after she posted her letter, and left a message with his assistant. She hasn't heard back. "Not that I'm really surprised," she says.
Meanwhile, I called Fordham University School of Law professor Susan Scafidi. Scafidi founded the Fashion Law Institute, and is an expert on intellectual-property law as it applies to the rag trade. "It's surprising that there aren't more protests," over cultural appropriation such as this, she says. "I think part of the story in this case was that the merchandise is hideously unflattering."
"It's a long-standing issue, you know, and it's not just in the fashion world. It's the Jeep Cherokee. It's the Washington Redskins. And there was enormous litigation over that trademark," says Scafidi. "It's an issue when you have indigenous peoples in general or Native Americans in particular who have been subject to actual genocide, and then you come back around with what some people characterize as cultural genocide. The pillaging of land, the pillaging of personal property, followed by the pillaging of what could be considered intellectual property. It's something that occurs against a background of a lot of other offensive actions."
Scafidi says Australia is among the countries that has done a better job of extending intellectual-property protections to indigenous peoples — in its case, Aboriginal tribes. "The United States has actually lagged behind a bit in the application of this kind of protection." The Federal Indian Arts And Crafts Act dates from just 1990. "I think with so many other injustices over the centuries — the loss of land, the taking away of children to 'Westernize' them, things that are truly appalling — the loss of culture wasn't recognized as quite as significant until more recently."
The Indian Arts And Crafts Act makes it 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." Using the name of a given tribe to claim or even imply that a product has anything to do with that tribe is punishable by fines of up to $1 million. That sounds like it should offer a pretty large measure of protection to Native American goods, right? Well, not exactly.
"The story with the Indian Arts And Crafts Act, though, is that it only protects, as you would expect from the title, 'arts' and 'crafts,'" says Scafidi. "So while there is general language [in the Act] about putting the term 'Indian' or 'Native American' or the name of a particular nation on any goods in a misleading fashion, that generalized language about 'any good' is narrowed by the description of 'arts and crafts' items in particular. Which is why things like the Jeep Grand Cherokee are not barred by the Indian Arts and Crafts Act, even though Cherokee is obviously a nation as well." A car isn't a piece of art, or a craft product.
And neither is a piece of clothing. Fashion is not considered an "art" (nor is a clothing design, under current law, copyrightable in the U.S.). And mass-produced items such as those Urban Outfitters sells are not really "crafts" either. In Scafidi's view, the fact that the Navajo Nation took the step of trademarking the name "Navajo" offers the tribe a much higher level of protection. That puts "Navajo" on the same footing as trademarks like "Chanel" or "Burberry." And the Navajo Nation has already warned Urban Outfitters to cease an desist from using the tribe's trademarks on its goods.
"There is a trademark on 'Navajo' for clothing," says Scafidi. "It mentions specifically jeans, and tops, and shirts, and sweatshirts," along with more general categories like "sportswear." Not all of the products that Urban Outfitters is selling under the name "Navajo" are enumerated in the trademark, "but you could imagine that other similar items could fall into the 'confusingly similar' category," meaning that they would also be protected from infringement. Of course, in court, "Urban Outfitters could come back and say, 'Well, if you wanted that trademark to cover panties, then you should have listed panties.'" Ultimately, it could be up to a judge to determine the fate of the Navajo Hipster Panty.
As it turns out, the company has a slightly different strategy: pretending it never got the Navajo Nation cease-and-desist letter in the first place. ' PR director Ed Looram emailed me the following statement:
Urban Outfitters is a trend-led lifestyle retailer dedicated to inspiring our customer with engaging product. Like many other fashion brands, we interpret trends and will continue to do so for years to come. The Native American-inspired trend and specifically the term "Navajo" have been cycling thru [sic] fashion, fine art and design for the last few years. We currently have no plans to modify or discontinue any of these products. As of this writing the Urban Outfitters brand has not been contacted by any representatives of the Navajo Nation.
According to Brown, the Navajo Nation Department of Justice sent its cease-and-desist letter to Senk's office on June 30th, 2011. The letter was sent via certified mail, and proof of delivery was obtained. The existence of the cease-and-desist was first revealed on Native Appropriations, which published several excerpts.
Brian Lewis, an attorney for the Navajo Nation, said tonight that "the Nation is cautiously optimistic that it can discuss this issue with the Urban Outfitters Corporation and convince it to adopt another name and trademark for its products."
It will be interesting to see whether the Navajo Nation decides to sue Urban Outfitters for trademark infringement. A cease-and-desist is sometimes, but not always, the prelude to a lawsuit. In a prepared statement, Lewis wrote that although the tribe "does not regard this as benign or trivial," it understands that perhaps Urban Outfitters has not yet had the opportunity to respond to its letter. "The Navajo Nation prefers the most beneficial resolution of this matter, and believes this can be achieved here with communication and appropriate actions."
Any legal battle would be complex. "From my personal perspective — Navajo is a people, not a pattern," says Scafidi. Trademark protection is strong, and the Navajo Nation's trademarks are detailed. "But legally, Urban Outfitters does have a couple of defenses," says Scafidi. "In the case of the Indian Arts And Crafts Act, they might very well say, 'Look, this is not an art or a craft.' And in the case of the trademark, they might say, 'Well, on those particular products there are other trademarks that indicate the source of the good, and that we believe nobody would be confused by the word Navajo.'" Urban Outfitters could argue that it is not using "Navajo" as a name or a trademark, but as a descriptor (although that might be difficult given that the chain offers 21 items for sale with "Navajo" in the name). "It's not a clear-cut issue," says Scafidi.
Of course, Urban Outfitters could always just ditch the dubious language altogether. "Simply changing the name from 'Navajo' to 'Southwestern' would go a long way towards not trivializing an entire people," says Scafidi. And it would put the company on surer legal ground. Changing its product names would probably be a savvy move, but, for whatever reason, it is not one that Urban Outfitters seems interested in making.