Native Sun News: Navajo Nation stands up for its trademarks

Thursday, November 17, 2011  

The following story was written and reported by Kate Saltzstein. All content © Native Sun News.

WINDOW ROCK, ARIZONA -- Urban Outfitters, the clothing store chain, has withdrawn the word Navajo on a clothing line after a tribal attorney wrote the company a “cease and desist letter” - and irate bloggers complained on the Internet.

But the products which include women’s underpants and a whiskey flask along with shirts, dresses, and jewelry, can still be seen on the Urban Outfitters website – without the word Navajo attached. The company, headquartered in Philadelphia, sells clothes in stores across the country. The items are decorated with diamond shapes, and lightning patterns similar to designs seen on Navajo rugs and traditional Navajo clothing.

Using tribal names on products has been ongoing for years, and this may be the first time that a tribe has issued a letter demanding that a company stop using its name.

Tribal attorneys say that the use of the word Navajo on these products violates trademark laws. The Navajo Nation holds trademarks to dozens of products produced by its own Navajo Arts and Crafts Enterprises and by other tribal enterprises.

The use of its name in this way also may violate the Indian Arts and Crafts Act of 1990 which prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. It also states that it’s illegal to imply that a product is made by a Native American when it is not.

In June, the Navajo Nation Department of Justice sent a letter to Urban Outfitters demanding that the name Navajo be removed from its products.

A letter dated June 30 from Harrison Tsosie, the tribe’s Attorney General, to Glen Senk Chief Executive Officer of Urban Outfitters, says “the Nation cannot accept its unique and well-known name being displayed on and in relation to your products which have absolutely no connection to the Nation, its entities, its people and its products.”

The Navajo Nation owns the Navajo name and trademark, the letter continues. And, it has numerous federal registrations for trademarks. The letter then lists many products for which tribal entities hold trademarks - everything from sportswear to towels, paintings, yarn, blankets and neckties.

Tsosie’s letter then declares that these Urban Outfitters products “falsely suggest that the company is connected to the Navajo Nation which is a violation of the Trademark Act which causes confusion in the market place.”

It appears that the company paid no heed to the letter for several months, but enraged bloggers on the Internet added to the controversy. And, a few weeks ago the company stopped using the word Navajo on the products. The store still sells these wares without the name Navajo attached. It is unclear whether this is a violation of the laws cited.

Recently, bloggers have been complaining about these and other products sold at Urban Outfitters stores.

In an open letter to Urban Outfitters on an Internet site called Racialicious, Sasha Houston Brown, who signed her name Dakota, Santee Sioux Nation, objects to various items she saw in the store.

She says that she visited an Urban Outfitters store in Minneapolis recently and saw “cheap, vulgar and culturally offensive retail collection “including plastic dream catchers, artificial feather jewelry and hyper sexualized clothing.”

“As 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 as fashion,” Brown writes.

“All too often, industries, sports teams and ignorant individuals legitimize racism under the guise of cultural appreciation,” she continues. “There is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, and Staring at Stars Skull Native Headdress T shirt or the Navajo Hipster Panty.”

These products “make a mockery of our identity and unique cultures,” she says in the letter adding that “None of the products were made by Indigenous nations nor were any native people involved in making them. On the contrary, you have created cheap knock-off trinkets made in factories overseas.”

She adds that the company’s actions violate the Federal Indian Arts and Crafts Act and the Federal Trade Comission Act.

“Urban Outfitters has taken Indigenous lifeway’s and artistic expressions and trivialized and sexualized them for the sake of corporate profit,” Brown says.

In another letter to Urban Outfitters, Jessica Metcalfe, a Turtle Mountain Chippewa from North Dakota, wrote in the Bismarck Tribune after the Navajos convinced the store to stop using its name on their products.

“I’m happy to see that Native people are standing up and saying that this profiting off what is ours is wrong,” Metcalfe says.

Brian Lewis, the Navajo Nation attorney who handled much of the trade mark violation issues for the tribe, said he could not speak about the case and referred questions to the Navajo tribe’s Attorney General. Calls to the Attorney General’s office were not returned. Urban Outfitters officials did not respond to questions emailed to them about the products.

The misuse of Native American names on products is nothing new, of course. And, the legalities are complex.

Some individuals have signed agreements with the tribe to manufacture items using the name Navajo - with an agreement to share profits.

For example, Phillip Brader of Austin, Texas signed an agreement with the Navajo Nation in 2007 to sell skin care products and clothing with a Navajo label.

It is possible for a company to legally use the Navajo name on products if the seller has contacted the tribe for its consent and has come to an agreement on sharing profits, Brader said.

In a telephone conversation and follow-up emails, Brader said he wanted to make it clear that he is not a legal expert and does not represent the tribe.

“These are my personal opinions. I am not an attorney. I cannot give legal advice in these areas. I can offer business opinions,” he said.

“I do not speak for the Navajo Nation or its entities,” he added. “I am not an employee of the Navajo Nation and not authorized to speak for them.”

Brader said his company has not done well so he has not shared profits with the tribe because the company has not made any. A shop that sold these products in Austin is out of business but he plans to revise an Internet site and perhaps open a new store someday.

“We’re tiny. I’ve lost money,” he said. “We’re obliged to a 50/50 share of profits with the tribe. As the volume increases so do the Navajo profits.”

Two websites for these products (www.Navajojeans.com and www.Navajoapparel.com) show two photos and information about the Navajos along with Navajo skin care products.

After receiving approval of the Navajo Nation to sell Navajo jeans and skincare products, Brader applied to get a trademark with the appropriate office in Washington, D.C.

According to the Indian Arts and Crafts Act, “you cannot sell a product that suggests the tribe’s name without the approval of the tribe,” Brader said. “I do not know if the Indian Arts and Crafts Act are being violated. I’m merely a layman. I just think it is."

Brader said he wants to make it clear that the Navajo Tribe owns its own name with a trademark and he adds that other tribes should follow that example.

He pointed out that companies have used the names of tribes for years to sell products including a Cherokee line of clothing, and a Navajo brand on a Mazda. Most often, these products have been made without compensation to these tribes because tribes have not applied for a copyright on their name, he added. And without a copyright, it’s not illegal to use a name.

“The Navajos have done a poor job until recently of protecting its name,” Brader said, adding that an important step for the tribe was hiring an attorney (Lewis) who specializes in trade mark protection.

“Dozens of people have been misusing the Navajo name. The Navajos finally are defending their property rights. I’m jubilant about it. I’m ecstatic,” he said.

Getting a trademark takes time and is expensive, he continued, but all tribes should do it.

“Get a trademark and a brand and a lawyer,” he said. “Tribes can sue. Indian names have been misappropriated. They have a right to own their own name. My message to Indian nations is to own their own name

(Kate Saltzstein can be reached at salty223@aol.com)