Urban Outfitters has removed the word “Navajo” from product names on its website in response to a cease-and-desist letter from the Navajo Nation as well as some blogosphere buzz.
Back in June, the Navajo Nation Department of Justice sent the letter demanding that the trendy clothing company drop the “Navajo” references on products such as the “Navajo Hipster Panty” and the “Navajo Print Fabric Wrapped Flask.” The Navajo Tribe holds about a dozen trademarks for the Navajo name covering clothing, footwear, textiles and online retail sales, and its letter claimed that Urban Outfitters’ use of the word on its products infringed the tribe’s trademark rights—and was offensive to boot.
Then on Columbus Day, Sasha Houston Brown wrote an impassioned open letter to Urban Outfitters’ CEO Glen T. Senk on Racialicious, which included the following paragraph:
Urban Outfitters Inc. has taken Indigenous life ways and artistic expressions and trivialized and sexualized them for the sake of corporate profit. It is this kind of behavior that perpetuates the stereotype of the white man’s Indian and allows for the ongoing commodification of an entire ethnic group. Just as our traditional homelands were stolen and expropriated without regard, so too has our very cultural identity. On this day that America still celebrates as Columbus Day, I ask that [you] do what is morally right and apologize to Indigenous peoples of North America and withdraw this offensive line from retail stores.
As of October 19, all “Navajo” references have been removed from the Urban Outfitters website.
If Urban Outfitters wanted to keep using “Navajo,” would they have had a good defense to trademark infringement?
As discussed in an excellent article at Jezebel, Fordham University School of Law professor (and founder of the Fashion Law Institute) Susan Scafidi states, “[i]t’s not a clear-cut issue.”
On the one hand is the impressive-seeming Indian Arts and Crafts Act, which prohibits the “offer or display for sale any art or craft product in a matter 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.” The catch to this law, though, is that “arts and crafts” have a very limited meaning—and, as Scafidi explains, clothing and mass-produced items, such as those of Urban Outfitters, probably wouldn’t be covered.
On the other hand, Scafidi notes that the Navajo Nation’s trademark registrations offer the tribe a much higher level of protection than the Arts and Crafts Act—a shopper at Urban Outfitters may well confuse an Urban Outfitters “Navajo” bracelet with a piece made by the tribe and sold through the store, and that likelihood of confusion is exactly what trademark law is meant to avoid. One might argue with whether a consumer would be confused, since the piece would be sold and bought at Urban Outfitters and not, say, at a Navajo Nation location, but that’s an issue for the courts.
According to an AP article by Felicia Fonseca, Urban Outfitters has handed the matter over to their legal department. However, the company’s PR director did say that “The Native American-inspired trend and specifically the term “Navajo” have been cycling thru [sic] fashion, fine art and design for the last few years. We currently have no plans to modify or discontinue any of these products. As of this writing the Urban Outfitters brand has not been contacted by any representatives of the Navajo Nation.”
But what about the fact that all the mentions of “Navajo” have been removed from Urban Outfitters’ website? Seems like legal and PR should have a talk so that the left hand knows what the right hand is doing. One doubts sincerely that Urban Outfitters wants to go up against the Navajo Nation, even in the press—hipsters wouldn’t like that.
So it looks like you’ll just have to settle for a “printed” hipster panty and flask from now on, minus the “Navajo.” Or you can find a Navajo artisan and support him or her by buying yourself an authentic piece.