What do CHEROKEE cars, the Atlanta Braves baseball team, and Urban Outfitters’ “Navajo” panties have in common? All are examples of brands and teams adopting Native American tribal names, terms, and stereotypes as their trademarks. What does that practice reflect about the complex relationship between trademark law and native peoples?
In Tradition Is a Trap, Professor Jessica Kiser argues that US trademark law has been, and remains, ineffective and biased when it comes to acknowledging, let alone protecting, the interests of Native Americans as individuals and as a people. Kiser’s article examines how trademark law has treated Native American tribal names and culture, including through application of the Lanham Act’s former bar on registration of disparaging marks, its prohibition on the registration of trademarks that falsely suggest a connection with institutions, and its standards around rights acquisition. It builds on and contributes to other important work in Critical Race Theory, Decolonial Theory, and Race/IP fields.
Through representative stories and empirical data, Kiser considers various doctrines as applied to both marks owned by Native American tribes and marks owned or asserted by others that incorporate tribal names, terms, mascots, and trade dress. She reports that Native American tribes have not been able to access trademark law and avail themselves of its protections and exclusive rights in the ways that corporations and non-minoritized individuals routinely can and do.
This finding holds true whether the tribes and tribal members are applicants, registrants, or litigants. By setting the trademark stories she tells against the backdrop of history and situating them in specific cultural moments—from the Trail of Tears to Boy Scouts “playing Indian” to racist advertising—Kiser demonstrates how tribal names and imagery became viewed as part of the public domain and Native American culture “transformed into something so unmoored from real Native Americans that it may be hard for the white majority to disentangle it from American cultural generally.”
The systematic relocation, starvation, and assimilation of Native people and their concurrent erasure from awareness left many tribal names unknown to most Americans, and thus in some cases ineligible for trademark law’s protections. As a result, corporations like Jeep and Chevrolet have been able not only to choose, use, and receive protection for tribe names as trademarks, but also to make their products the primary associations consumers have with those names.
By drawing attention to and revealing the complex relationship between Native Americans and American trademark law, Tradition is a Trap makes an important contribution to our understanding of trademark law’s development, application, evolution, and harms. Highlighting “the ways in which trademark law’s focus on the past and on ‘imagined traditions’ harms Native American communities by holding them in a historically-frozen, disadvantaged, colonial context,” Kiser takes readers below the surface to better understand the ways that trademark law can injure and erase communities.
The Lanham Act is often regarded as neutral by courts and scholars, especially after the Supreme Court’s decisions in Tam and Brunetti struck down its prohibitions on registration of disparaging, scandalous, and immoral marks. Trademark is a Trap reveals that it is precisely those facially neutral tenets of trademark law that render it ill-equipped to remedy the inequality and racial hierarchies it replicates and perpetuates. “Trademark common law does not ask who uses a mark most efficiently, who uses the mark better, or whose use of the mark most benefits society. It asks who used the mark first,” Kiser notes, even when members of marginalized groups might have lacked the legal or economic ability to make such use.
Ultimately, the article demonstrates why when it comes to trademark law, the master’s tools cannot dismantle the master’s house. Statutory or jurisprudential changes to the Lanham Act can never adequately redress the grievances Kiser articulates. Native Americans will need to look outside of the formal trademark legal system to protect their interests, employing strategies like shaming corporations, educating the public, shifting consumer perception, building coalitions with other marginalized groups, and broadening the tent to enlist those who claim Native American ancestry without tribal affiliation.
Professor Kiser’s work lays bare not only how trademark law has failed to serve Native American tribe members and trademark owners, but why it is that trademark law supports colonizer interests at the expense of those who lack power—a question we ought to ask more often and in more contexts when considering trademark law and policy.
