Last week the Navajo Nation filed suit against Urban Outfitters and its wholly owned subsidiaries for its use of the geometric designs associated with the Navajo Nation and the name "Navajo" and "Navaho" on its products, both online and in stores, even following cease and desist orders.
The complaint states that as the owners of some 86 registered trademarks, since the 1940s, the Navajo Nation's distinctive designs have been used with numerous products, "including clothing, accessories, blankets, jewelry, foods, tools, decorations, crafts, gaming establishments, tourism, educational institutions, retail services, fairs and events, and a news publication."
The complaint states that Urban Outfitters has been selling products since 2009 that are in direct competition with the Navajo Nation's goods, as they are sold in the same channels of commerce, and because of the looks and branding, may confuse consumers as to the origin of the design. The complaint lists the following products as illustrative of the alleged infringement:
- Navajo Nations Crew Pullover
- Title Unknown Techno Navajo Quilt Oversized Crop Tee
- Truly Madly Deeply Navajo Print Tunic (pictured above)
- Navajo Feather Earrings
- Navajo Sock
- Leather Navaho Cuff Bracelet
- Navajo Print Fabric Wrapped Flask
- Navajo Hipster Pant
The plaintiffs particularly object to the sale of the Navajo print wrapped flask because, the tribe does not "use the Navajo name and trademarks in conjunction with alcohol, or items with alcoholic connotations. Indeed, the Navajo Nation has long banned the sale, manufacture, possession, transport, delivery, and consumption of alcohol within its borders."
The Navajo Nation is suing under theories of trademark infringement, trademark dilution, unfair competition and commercial practices laws violations, and for violation of the Indian Arts and Crafts Act, and other violations. It wants Urban Outfitters and its brands enjoined from using the words "Navajo" and "Navaho" in marketing products, and treble damages for all profits generated by the marketing and retailing of "Navajo" products, and other damages.
It will be interesting to see how this case is resolved, because as I have blogged about before, clothing cannot be copyrighted because it is a utilitarian item. This, of course, is not a copyright suit, but may invoke similar legal questions, since the tribe is alleging that the retailer is using its distinctive marks.
Trademark rights, however, can be broader in the clothing industry than copyright, because they include questions as to whether the marketing might confuse consumers into thinking that unauthorized products are produced by the trademark owner, which the complaint accuses Urban Outfitters of doing. It's more about the branding than the actual print itself. Think of the infamous Louis Vuitton knock off market, and you will get a better idea of what a trademark infringement suit looks like.
Click to learn more about Trademarks.
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