Legally Apparel? Are cultural icons 'borrowed', 'interpreted' or 'stolen'?

One of the most cheerful souls you are ever likely to encounter in the often oh-so-serious world of intellectual property is this Kat's friend and fellow blogger Tania Phipps-Rufus.  Tania, who is a visiting lecturer in law at the University of Hertfordshire, is currently working towards a Ph.D at the University of Birmingham in Intellectual Property, Cultural Intermediation & the Creative Economy.  In response to an invitation from the Kats, Tania has gifted us this guest post on some further woes that Urban Outfitters has inflicted on itself:

For all the legal fashionistas out there -- and those interested in the intersections of law, fashion and culture -- well-known fashion retailer Urban Outftters have been at it again. It’s not so long since the Navajo v Urban Outfitters case concerning alleged trade mark infringement, dilution, unfair competition, false advertising, and violations of the Federal Indian Arts and Crafts Act, which makes it illegal to sell arts or crafts in a way that falsely suggests they were produced by Native Americans (the AmeriKat has already covered this here). And now Urban Outfitters seem to have got themselves into hot water again — this time for alleged infringement of the United Farm Workers of America (UFW)’s highly iconic trade marked logo/symbol which has been used to represent the agricultural workers union for nearly four decades. Says the UFW, Urban Outfitters has used this logo, without their permission, in the sale of denim shirts.

The shirts in question, retailing at $64.00, bear a remarkable
resemblance to the trade marked UFW logo illustrated below

“It is never our intention to appropriate a culture or infringe on trade marked material. Urban Outfitters takes these matters very seriously, therefore, we have taken action to have the Koto Cross-Stitch Denim Button-Down shirt removed immediately from our stores and our website. Urban Outfitters is currently working with the UFW directly to rectify this matter”, wrote Urban Outfitters in a comment on Voto Latino’s Facebook page,which came in response to a Facebook status update post discovering the shirt: “This weekend I was surprised to see the well-known logo of the United Farm Workers on a shirt at Urban Outfitters in DC. I took a look at the tags and there was zero mention of the UFW or the history of the logo. The UFW logo was first designed in 1962 by Cesar Chavez, Richard and Manuel Chavez.”

On discovering the use of the UFW logo on the shirt, UFW tweeted that it would be ‘preparing legal action’. Says the Huffington Post, ‘UFW attorneys have sent a Cease and Desist letter to Urban Outfitters and their public relations manager is in the process of removing the shirt from all their stores and website’.

As company spokesman Ed Looram, speaking for Urban Outfitters, stated last year "Like many other fashion brands, we [Urban Outfitters] interpret trends and will continue to do so for years to come," However, it does seem quite common for fashion to borrow from culture. Just check out Christian Louboutin beaded shoe & Ulona 140 platform sandals both inspired by tribal designs:

More on this can be found here

Interpreting trends and trade mark infringement are two separate things.

This legal academic notes that, while there are vast complexities interwoven into the practice of fashion borrowing from cultures, trade mark law is pretty straightforward on the matter, and it will be fascinating to see how this, and the Navajo case, progress".