How Navajo Nation v. Urban Outfitters Illustrates the Failure of Intellectual Property Law to Protect Native American Cultural Property

Headnote

Abstract

This note examines the decision put forth in Navajo Nation v. Urban Outfitters regarding the Navajo Nation's claim of trademark dilution. Within this analysis, I analyze the history of Navajo weaving in American popular culture, the trademark laws that apply to the case, and how these laws fail to adequately address the needs of Native American tribes.

I.Introduction

American intellectual property laws seek to reward and protect the creative outputs of individuals.339 In the realm of trademarks, those who create successful marks are rewarded with enduring and comprehensive control over use of their mark. 340 Unfortunately, this seemingly straightforward set up runs counter to Native American cultural values and interests.341 The clash between these two sets of values often means that the existing American legal framework inadequately addresses Native American claims of cultural appropriation and prevents Native Americans from protecting their cultural heritage.342

This note focuses on the failure of American trademark law to adequately respond to cultural appropriation claims. This note also illustrates this inadequacy by examining the litigation surrounding Urban Outfitter's cultural appropriation of Navajo 343 weaving. Specifically, this note argues that the District Court of New Mexico erred in its finding that the Navajo mark was not famous under the Trademark Dilution Revision Act ("TDRA"), and explores how this decision perpetuates a long standing trend of the American legal system's poor treatment of American Indians.344

Part II of this note examines the development of trademark dilution law and the standards that have developed for "famous" marks. It lays out the general history of Navajo weaving, including its importance to Navajo culture, its place in the American commercial market, and how Navajo weavings - as Native American creations - have been systemically devalued by Western notions of art. Part III summarizes the Navajo Nation v. Urban Outfitters case.345 Finally, Part IV shows the incompatibility of Native American claims with Western legal paradigms, as well as the limited means Native Americans have to protect their heritage. Additionally, Part IV uses the Navajo Nation v. Urban Outfitters case to demonstrate the impact that the systemic issues outlined in Part II has on modern American Indian issues within intellectual property law and what is needed to remedy those issues.

II.Background

A.Trademark Law

Trademark law...