For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Sunday, 15 July 2012

Letter from AmeriKat: Navajo Nation v Urban Outfitters

The AmeriKat's cousin - the New Mexican bobcat:
just as cute, but can be twice as vicious....
The AmeriKat has been missing her home state of late - the cool desert night breezes, the unbearably hot midday sun, the rumbling thunderstorms and the green chile.  Goodness gracious, does she miss the green chile.  And can you blame, the AmeriKat?  What with the freezing summer months, constant rain and look of exasperation and defeat on everyone's face together with the impending shadow of the Olympic weeks creeping into their frenzied eyes? So her ears perked up when she spied a rare and slightly old news article about intellectual property from New Mexico (for previous New Mexico related IP see this AmeriKat report on, yes, green chile).

New Mexico is home to several Native American tribes including the Apache, Laguna Pueblo, Zuni and Navajo tribes. As one of the biggest tribes in the US, the Navajo Nation territory covers portions of northwestern New Mexico and its artwork and crafts, including beautiful and intricate woven rugs, jewellery, baskets and pottery is widely known and held in esteem throughout the US and the world. It is unsurprising that Navajo, and Southwestern design and aesthetic in general, has been the inspiration for fashion designers for years, most notably in the classic Ralph Lauren  lines ["Give me a clay colored broom skirt and silver hammered turquoise belt any day", says Merpel]. Last fall, Proenza Scholuer's SS 2012 ready-to-wear collection displayed the earth tones and geometric characteristics that infiltrates much of Southwestern design.  Inspiration is one thing, misappropriation is something completely different.  

The flag of the Navajo Nation.
Back in February, the Navajo Nation issued proceedings in the US District Court of New Mexico against Urban Outfitters - favorite clothing and lifestyle retailer for the cool (or wannabe) college student - for use of the Navajo name on a line of its products in violation of the Indian Arts and Crafts Act. The Navajo Nation owns 86 trade marks for the word NAVAJO for use in a variety of categories, 10 of which are registered for use for clothing and accessories . The Act prohibits the misrepresentation in marketing (offer for sale or selling) of Indian arts and crafts produced after 1935 which suggests that it has been produced by a native american tribe. Traditional items that are frequently copied by non-Indians include Indian-style jewellery, pottery, baskets, cared stone fetishes, woven rugs, kachina dolls and clothing. A first time violation of the Act can see a business defendant fined up to $1,000,000.

Last year, Urban Outfitters  intrdouced a line of Native American inspired products which included Navajo underwear, liquor flasks, and beaded earrings and bags which incorporated traditional Navajo patterns. One of the Navajo Nation's most valuable assets is its intellectual property in its traditional crafts, patterns and in its name. It is not surprising, therefore, that the Navajo Nation called the infringement violations "derogatroy and scandalous", especially because alcohol is banned on the Navajo Reservation.  The initial complaint arose when Sasha Houston Brown published her letter of complaint to the retailer on Columbus Day, after which the letter went viral.  She wrote:
"As a Native American woman, I am deeply distressed by your company's mass marketed collection of distasteful and racially demeaning apparel and decor.  I take personal offence to the blatant racism and perverted cultural appropriation your store features this season as 'fashion.'"
The Navajo hipster brief
Following the initial cease and desist letter to Urban Outfitters, formal proceedings were prompted when the Navajo Nation learned that the offending products were still being sold by Urban Outfitters's other brands such as Free People and in catalogues and outlets. 

In an interview on NPR with NPR journalist Michel Martin, Navajo Times contributor Bill Donovan from Gallup, New Mexico stated:
DONOVAN: Well, back in 1975 or '76, the Navajo Nation actually tried to copyright the word Navajo, but they were told that it was such a common name, they couldn't do it. Now, what they did here was they went and sued them on the basis of the Indian Arts and Crafts Act, which says it's illegal to produce a product that says it's Indian made when it's not Indian made. So the Navajo Nation is saying that the products that the company is producing makes it appear that Navajos had some part in the production of these products and therefore that's against the law. 
MARTIN: But this isn't the first time that the name has been used to sell a product not produced by Navajo people. For example, remember there was that - the Navajo SUV from Mazda? Is that viewed differently by the tribe? 
DONOVAN: Very much so. That's about 15 years ago. Mazda came to the Navajo Nation and asked permission to use the word Navajo, and it promised that it would do so with dignity, and it gave one of the cars to the Navajo Nation to use in its government offices. And then there have been a couple of Navajo clothing lines, which also got endorsement from the Navajo tribe, so the Navajos have endorsed products. 
The Navajo Print Fabric-Wrapped Flask
MARTIN: Well, in fact, Sasha, in her letter - Sasha Houston Brown, in her letter, says that there's 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, or the Navajo Hipster Panties. So I think part of the point that you're making here is it's some of the products themselves that many people found tacky and kind of insulting. Is that it? 
DONOVAN: That's right. Tacky is a good word. The Navajo Nation has been very sensitive about people using their name to promote tacky products. I remember back in 1982 or 1983, Penthouse magazine wanted to come in on the reservation and do a pictorial using the Monument Valley area. The Navajo tribe went ballistic and said no, you can't do that. That's just too tacky and insensitive to us. You cannot come on the reservation and do that.
This is not the first time that New Mexico and Urban Outfitters have had a dispute. In 2005, the retailer introduced a shirt that read "New Mexico, Cleaner than regular Mexico". The Anti-Defamation League called for the retailer to stop selling the shirt because it suggested that "Mexico is a dirty place."

The AmeriKat has been unable to find any further news of the on-going dispute, but would be unsurprised if it settled quickly.  In the meantime, this tale is a caution to retailers and designers to ensure that their inspiration does not turn into misappropriation, especially when culturally and politically sensitive issues such as indigenous design and heritage is at issue.

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