The controversy first erupted October 10th, 2011. On Columbus Day, Sasha Houston Brown, a member of the Sioux Santee Nation, posted an open letter on the popular blog Racialicious directed at the CEO of Urban Outfitters, Glen T. Senk. In the letter, Ms. Brown addressed the “…perverted cultural appropriation…” that she had witnessed when she visited an Urban Outfitters store in Minneapolis, MN. To what was she referring? It was items of clothing and accessories featuring Native American imagery and patterns as well as the word “Navajo” in their titles. There were tee shirts with Navajo patterns printed on them, a hip flask covered in Navajo fabric, and a pair of women’s underwear emblazoned with another pattern. Within a matter of hours, the letter had gone viral.
As well as blasting Urban Outfitters for being “tacky,” “cheap,” and “…[professing] extreme ignorance and bigotry,” Ms. Brown raised the point that by using the Navajo name, Urban Outfitters may be in violation of the Federal Indian Arts and Crafts Act of 1990, as well as guilty of infringing on the trademarked Navajo name. The act prohibits misrepresentation in marketing of Indian arts and crafts, which entails falsely identifying the product in question as being made by an Indian tribe or craftsperson. A few months prior to when Ms. Brown published her infamous letter, the Attorney General of the Navajo Nation actually sent their own, a cease and desist notice. In the notice, the Attorney General noted that consumer confusion would be created if Urban Outfitters continued to use the Navajo name and requested that the product line be discontinued immediately.
On February 28th, 2012, the Navajo Nation filed suit against Urban Outfitters in New Mexico, alleging trademark infringement and dilution as well as violation of the Arts and Crafts Act. The case states that the use of the Navajo name and traditional patterns causes confusion as to the source of the products and weakens the distinctive nature of the trademarks held by the Navajo Nation. It also asserts that dilution has specifically occurred because products such as a hip flask and panties are “derogatory and scandalous.” Multiple commentators on the original letter by Ms. Brown were especially distressed by the flask, given that alcohol sales are banned on Navajo lands and alcoholism is an extremely serious issue in the Native American community at large.
While the trademark protection of “Navajo,” as well as alternative spellings is strong and the claims of infringement and dilution are likely to be upheld, it is less clear if the court will uphold that Urban Outfitters violated the Arts and Crafts Act. Clothing is neither and art nor a craft. Also, Urban Outfitters is likely to argue that consumer confusion is unlikely, given that the items are clearly manufactured and sold by them rather than by the Navajo Nation.
Prior to the suit being brought, a spokesperson for Urban Outfitters defended the use of the Navajo name and derivative prints, saying, “The Native American-inspired trend and specifically the term ‘Navajo’ have been cycling thru fashion, fine art and design for the last few years.” However, items that had previously featured the word “Navajo” in their titles have either been removed from the online shopping portal or renamed. The suit raises complex questions about how intellectual property should be handled in fashion; complaints of cultural appropriation of both traditional Native American and African tribal designs have been raised time and time again. Designers and companies are usually able to deal with this criticism by claiming ignorance or denying that they did anything wrong. Oftentimes, they successfully claim “inspiration” rather than outright theft of a design. Since Urban Outfitters used “Navajo” very explicitly, it is unlikely to be able to do the same.
Is it reasonable to say that any one person or entity owns a name or pattern, especially ones as globally well known as the Navajo name and associated patterns? Much like the case of India patenting yoga postures, these intellectual property protections assure that the proper associations are maintained. Just as India does not want yoga to be improperly identified with the United States or a particular famous practitioner, the Navajo Nation does not want material that is unique to their culture and history to be claimed by another party. They want to control how they are represented, and their suit against Urban Outfitters shows that they not only have the will to do so, but the legal savvy.