IS ALL “FAIR” IN FASHION AND APPROPRIATION?

By: Heather Torres | Intern | heather.torres@procopio.com
Ted Griswold | Partner | ted.griswold@procopio.com

On July 12, 2016, New Mexico Federal Judge Bruce D. Black granted another partial win to Urban Outfitters in the infamous, Navajo Nation v. Urban Outfitters, by denying the Nation’s motion to dismiss Urban Outfitters’ trademark fair use defense. As a result, Urban Outfitters will be able to assert the affirmative defense of descriptive fair use against the Nation’s trademark infringement claim at trial. Descriptive fair use allows the use of another’s mark if used to describe a user’s product or their geographical origin, rather than indicate the user’s own products or business. Essentially, Urban Outfitters argued that the term “Navajo” is only a descriptor to signify a general style and “is and always has been a geographically descriptive [term].”

This latest ruling is consistent with the court’s earlier decision in May. In May, Judge Black found the “Navajo” mark to be a niche mark not “famous” enough to be protected from trademark dilution. The court accepted Urban Outfitters condensing a Tribal Nation and its distinctive cultural expressions into a generic mark capable of being exploited by non-Indian businesses. This acceptance contributes to the continued cultural genocide of Indian identity through what scholars Angela Riley and Kirsten Carpenter call “Indian Appropriation.” The court’s earlier dismissal of the trademark dilution claim could indicate a high likelihood of Urban Outfitters’ fair use defense being accepted at trial.

The Navajo Nation also asserts Urban Outfitters used the term “Navajo” in violation of unfair competition and commercial practices law and in violation of the Indian Arts & Crafts Act (“IACA”). As discussed in Gabriela Rios’ post, New Mexico District Court Holds Urban Outfitters Can Be Sued Under Indian Arts & Crafts Act, the Act allows Indian tribes to sue a person or entity who sells a product in a way 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, resident within the United States …” 25 U.S.C. §305e(b). Though, the Act has been perceived as a protection with all bark and no bite, the Nation could see some remedy. On May 19, 2016, Judge Black found that the Act allows the Nation to collect statutory damages “. . . of not less than $1,000 for each day on which the offer or display for sale or sale of a given type of good continues.”

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

“Forage”- Ahead: Tribes Permitted to Gather Plants from National Parks

By: Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

Effective August 11, 2016, the U.S. Department of Interior authorizes the National Park Service to enter into government-to-government agreements with federally recognized Tribes to allow tribal members to gather and remove plants or plant parts from national parks and monuments for tribal or cultural uses. [Link to the rule here]

In the agreements, Tribes must explain their traditional connections to a particular park or monument, and show that such connections predate the park’s establishment. Tribes must further identify the specific plants that will be gathered, in what quantities the plants will be collected, and what individuals may conduct the foraging activities. Some Tribes are worried that the mandatory informational disclosure to the public agency might lead to undue public documentation of traditional religious practices, and harassment of tribal members. However, in many instances, the protection of national park/monument status has maintained some of the best remaining populations of traditionally-used plants.

For each request, the National Park Service must also conduct an environmental assessment to determine the impact of the tribal plant gathering on park resources, as this is a notable departure from prior directives to “leave only footprints, take only pictures.” A “no significant impact” determination, declaring that the tribal plant gathering will not have a negative impact on a particular park or monument, must be reported in order for a permit to be issued.

Aside from the criticism mentioned above, the new rule is a good step forward in supporting and respecting the continuation of the unique cultural traditions and practices of American Indians. Years of studies in the field of ethnobotany and traditional plant management have shown the benefits of traditional gathering methods used by many tribal members familiar with the specific harvest and cultivation techniques of their regions. Far from being “negative impacts,” these methods have proven to be effective at ensuring plant conservation, replacement, and prosperity.

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.

Tribe Beats Beer Behemoth in Trademark Settlement

By: Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

In June, the Lumbee Tribe of North Carolina filed suit in federal court against beer giant, Anheuser-Busch LLC (AB), and one of its distributors R.A. Jeffreys Distributing Co. LLC, alleging trademark infringement, unfair competition, and unfair and deceptive practices. Without the Tribe’s permission, AB and R.A. Jeffreys used the Tribe’s logo mark and slogan mark in promotional material advertising Budweiser and Bud-Light alcohol products at multiple convenience stores near the Lumbee reservation.

The lawsuit claimed that AB’s use of the allegedly infringing marks led to a significant amount of confusion within the community and among consumers, creating a false impression in the minds of the public that the Lumbee Tribe had approved of AB’s products being sold under its logo and slogan. According to the complaint, many members of the Lumbee Tribe found the advertising offensive because alcohol abuse is often associated with Native American communities.

AB and R.A. Jeffreys quickly settled the lawsuit with the Tribe in exchange for a “sizeable donation” to one of the Tribe’s nonprofits, cessation of the advertising campaign, and an apology for the improper use. The Tribe has announced that the settlement money will go towards supporting education and youth programs.

This story is an example that even against a huge multi-billion dollar corporation, a Tribe should fight to protect its valuable intellectual property rights and ensure that a Tribe’s name, customs and culture are not abused for third party financial gain. It also exemplifies the importance of Tribal Governments trademarking their identity to protect their image and expedite resolution when abuse occurs.

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him at ted.griswold@procopio.com and 619.515.3277.

 

 

Pride or Prejudice: Native Regalia and Graduation Ceremonies

By Heather Torres | Intern | heather.torres@procopio.com

Over the past weekend, many celebrated the 240th birthday of the United States with fireworks, food, and flying the nation’s flag. Red, white, and blue stars and stripes found on everything from cupcakes to clothing. We see similar celebrations around high school graduation time; families blasting airhorns at commencement, throwing parties, decorating homes and cars in school colors, all to honor the accomplishments of young scholars. However, a particular way of celebrating seems to cause a stir every year: Native graduates wearing tribal regalia.

This year’s graduation season was littered with stories of public school districts banning Native American students from wearing regalia and beaded caps during graduation ceremonies. At least four incidents were reported on various media platforms. (1, 2, 3, 4) The students planned on wearing graduation caps beaded by their family members and traditional regalia to celebrate their accomplishment, to honor their ancestors, and to be a role model for other Native students. Role models and the visibility of their accomplishments are vital to efforts to reverse historically low graduation rates for Native students.

School policies implicated in these incidents are aimed at some general goals. Those goals include safeguarding uniformity, preserving the sanctity of the ceremony, and upholding formality. Often, once a dialogue occurs between the school and the student, school officials agree to accommodate a student’s request, particularly because the school leadership recognizes the spiritual and religious significance of the regalia. However, when an agreement is not reached, students face fines, not participating in commencement, and not receiving their diploma.

An individualized process could be applied to all student requests, allowing schools to practice informed discretion when considering requests from students. In past advocacy efforts, organizations like the Native American Rights Fund (NARF) point out the parallels between school sponsored honor chords and wearing an eagle feather on a graduation cap. Both symbolize outstanding achievement and represent a well-deserved honor. NARF has also created brochures for students on how to approach their school’s administration with a request and for schools to better understand the cultural and religious significance of eagle feathers.

Looking at images of students in public school districts like the Nebo School District in Utah, which graduated 100% of its Native seniors this year, the sanctity and formality school district’s seek is beautifully embodied in tribal regalia. If anything, a student’s regalia honors the sacredness of the ceremony and elevates the accomplishment beyond the individual student to their Tribal Nation(s). Arguments around uniformity, formality, and dignity harken back to the federal government’s assimilationist policies, most notably exercised in Indian boarding schools. School districts recycle assimilationist values in their graduation attire policies by viewing tribal regalia as informal, inappropriate, and undignified.

Current restrictive school district policies have damaging and discriminatory effects on Native students, their families, and Tribal Nations. With the resources made readily available by organizations like NARF, students and families raising this issue every year, and the recent rise in media coverage, school districts should use the information available to critically review their policies and take corrective measures.

Heather Torres (San Ildefonso Pueblo, Navajo) is a rising 3L enrolled in the Critical Race Studies specialization at the University of California, Los Angeles School of Law. Heather is an Executive Editor for the Indigenous Peoples’ Journal of Law, Culture & Resistance at UCLA. She is a recipient of the 2016 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.