IS ALL “FAIR” IN FASHION AND APPROPRIATION?

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 GriswoldTed 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.

2015 Procopio Native American Practice Group Internships Awarded to Anna Hohag and Nichole Alex

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

Procopio is pleased to welcome Anna Hohag (University of Arizona) and Nichole “Nikke” Alex (University of New Mexico) as the 2015 summer interns for the firm’s Native American Practice Group. Each paid internship extends ten weeks, and provides an opportunity for a Native American law student, or law student emphasizing Native American Law, to gain hands-on experience dealing with everyday legal issues facing Native American communities. Procopio Interns also reach out to local Native American youth to provide guidance and inspiration regarding educational direction and opportunities.

Ms. Hohag is a first year law student at the James E. Rogers College of Law at the University of Arizona, focusing on its Indigenous Peoples’ Law and Policy Program.   Ms. Hohag is a citizen of the Bishop Paiute Tribe in Bishop, CA. Prior to entering law school, Ms. Hohag worked as a Tribal Liaison for Pala Band of Mission Indians from 2012 to 2014, working on land and environmental issues for the Tribe, including educating Tribal members on the American Indian Probate and Reform Act, and working with water and land settlements, sacred sites and the protection of natural and cultural resources.   She has over 4 years of youth mentorship experience, both on the Pala Reservation and for the Bishop Paiute Tribe, providing guidance for youth to succeed in higher education, as well as serving as a positive role model.

Ms. Alex is a second year law student at the University of New Mexico School of Law with an emphasis on Indian and Environmental law. Ms. Alex is a citizen of the Navajo Nation. Ms. Alex is the current student liaison for the New Mexico Bar Association Natural Resources, Energy and Environmental Law Section. Prior to attending law school, she was the Executive Director for the Black Mesa Water Coalition, an environmental non-profit that is dedicated to preserving and protecting Mother Earth and the integrity of Indigenous Peoples’ cultures. She previously worked with the Diné Policy Institute applying Navajo Natural laws, and was an intern with the Tribal Science Council at the U.S. Environmental Protection Agency in Washington D.C.

Procopio’s Native American practice group extends the firm’s tradition of giving back to the community it serves through its summer internship program for Native American law students or law students interested in Native American law. The firm started this program in 2011 and has now welcomed nine interns since its inception. Notably, Jaclyn Simi, a 2012 intern and a citizen of the Seminole Nation of Oklahoma and Stephanie Conduff, a 2013 intern and a citizen of the Cherokee Nation, both continued to work with Procopio following their internships. For more about the Internship Alumni, click here.

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.