Alt Legal Connect Session SummaryWhen Imitation Is Not Flattering: Cultural appropriation in trademarks
Alt Legal Team | February 06, 2023
On Monday, February 6, Nicole Gaither of SageHaus Legal moderated a panel discussion with Angela Grayson of Precipice IP, Keely Herrick of KHerrick Law, and Katherine Belzowski of the Navajo Nation DOJ, “When Imitation Is Not Flattering: Cultural appropriation in trademarks.” The panel discussed why cultural appropriation matters when it comes to trademarks, what obligations trademark practitioners have to the public when it comes to these sensitive situations, and how trademark practitioners can guide their clients who want to apply for culturally-sensitive trademarks.
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Nicole began the presentation discussing how the fashion industry has continually borrowed symbols of other cultures, using them as decoration rather than representation of religious or cultural narratives. She stated that most designers are not looking deep enough to understand the historical and cultural meaning behind their design choices. As an example, she showed images of designs from Gucci and Prada reminiscent of Sambo characters where the brands did not demonstrant any understanding the historical significance behind Sambo characters. She also showed images of fashion runways from Valentino and Marc Jacobs where models’ hair was styled in faux locks and cornrows. These are styles typically representative of African American culture, but were placed into a fashion context. When asked about using these styles on the runway, Marc Jacobs’ hairstylist said they look at a lot of different references and it was basically a melting pot of ideas including Boy George, Marilyn Manson, 80’s club kids, Japanese Harajuku kids, and ravers. The problem is that the designers aren’t giving credit to people who started the trend or to people for whom this is part of their culture, like George Clinton or Bob Marley, who regularly wore these styles.
Similarly, Angela noted that this is reminiscent of the TikTok dancers of color not receiving credit for dances they created and were popularized by others not of color. She noted that it can be challenging to counsel a company wanting to use certain hairstyles. She identified that a key to properly borrowing or being inspired by different cultures is giving credit. Marc Jacobs would have been well-advised to provide credit to the originators of these hair styles.
Next, Nicole described how recently with the Lunar New Year, many luxury brands creating items with red and gold branding and special Lunar New Year products, commodifying cultural holidays and traditions. These brands, including Louis Vuitton and Valentino, don’t appear to be giving any credit, acknowledging cultural origins, or educating people about these traditions.
Nicole then mentioned some of the classic cases of cultural appropriation in the US including Aunt Jemima and Uncle Ben’s. After the racial reckoning of 2020, the company finally changed the product name to Pearl Milling Company and removed the image of the woman emanating from slavery. Additionally, the company has allowed its trademark registrations to lapse, but others have come in to try and re-register the marks for pancake mixes. At the same time, Uncle Ben’s changed its logo from a chef to a man in a suit.
Cultural Appropriation Basics
The panelists defined what exactly is cultural expression – expressions of folklore including music, dance, art, designs, names, symbols, signs, etc. that form part of identity and heritage of a traditional or indigenous community and are passed down across generations. Meanwhile, cultural appropriation is defined as the adoption, without acknowledgement, of cultural identity markers, from subcultures or minority communities into mainstream culture with a relatively privileged status. Keely explained that the key here is the non-acknowledgement part – it is certainly possible to reference another culture, but doing so from a privileged standpoint is the problem. Angela noted that a major problem to cultural appropriation is the inequity surrounding it. Keely affirmed that from a trademark perspective, this is branding and making money or getting an advantage from using someone else’s culture.
Keely then went on to describe some celebrity branding missteps involving cultural appropriation.
First, she discussed J’OUVERT rum by Michael B. Jordan. J’ouvert is a well-known term in the Caribbean, particularly in Trinidad and Tobago where they celebrate the J’ouvert festival as part of Carnival. J’ouvert is a deeply symbolic event introduced by formerly enslaved Africans after emancipation. The rum was advertised as a tribute to the traditional Caribbean carnival festival, however, it did not go over well with the people of Trinidad and Tobago. They felt it was improper for someone not of Caribbean descent to try to associate themselves with the festival. Angela asked what type of credit is appropriate to see? In this case, a “tribute” as Michael B. Jordan claimed, was insufficient. Nicole said that it is important to acknowledge the community, to work with them, and to invite people into what you are doing. Keely said that it’s important to think about the difference talking about someone else’s culture and profiting off of it. Angela noted that Beyoncé is particularly good at paying tribute to her inspiration, spotlighting talent from all over the world so that the money flows to her and right back to her inspiration. Angela expressed that this is what real credit is all about.
Next, Keely shared how Kim Kardashian introduced a brand of undergarments called Kimono, which was not well-received. The term “kimono” was misused as there were no kimono style garments, so it was misdescriptive, but it was also seen as culturally insensitive and inappropriate to take a significant Japanese garment and name a brand of shapewear/solution-wear after it. After poor reception, Kim withdrew her trademark applications and re-branded as SKIMS. Angela noted that Kim’s sister, Kendal Jenner, also got in trouble for her 818 tequila brand, claiming to be very involved in creating the product and associating herself with Mexico. The presenters said that to their credit, both Kim and Kendall listened to the backlash. Kim changed her shapewear line’s name and Kendall got involved with the community in Mexico, settled the dispute, and got involved in community projects. Both made changes and brought the community along, sharing the wealth.
Keely then went on to discuss Gwen Stefani who has long been inspired by other cultures in her fashion choices. In the 90’s, Gwen wore a bindi while she was dating her Indian bandmate. More recently, in a Sean Paul video from 2022, she was shown with locks and wearing a dress in the colors of the Jamaican flag. Throughout the years, she had a brand called Harajuku Lovers and in concerts, she toured with the Harajuku Girls who she named Love, Angel, Music, and Baby after her fashion line L.A.M.B. They were four girls dressed in Harajuku style who did not speak. Comedian Margaret Cho referred to them as a “minstrel show.” Gwen has made lots of money made off the branding and has been asked about about her “inspiration” many times over the years. In a recent interview with Allure, she shockingly claimed that she is Japanese because her father spent a lot of time working in Japan when she was a child. The presenters noted that the problem with Gwen Stefani is that she keeps repeating this appropriation and doubles down, not just saying that she loves the culture, but going further with her claims.
Sports and Cultural Appropriation
Angela discussed how the Cleveland Indians, Kansas City Chiefs, and Washington Redskins sports franchises offended the Native American community. With the Chiefs being in the SuperBowl, there is now renewed interest in the Stop the Chop movement to prevent cultural appropriation by these franchises. Unfortunately, Angela explained, the law hasn’t been particularly helpful to the communities feeling that their cultural identities have been hijacked for commercial gain.
Nicole mentioned how Asian rice manufacturers feel they haven’t been properly acknowledged as other companies produce varieties of rice other than Basmati which cannot be produced in the US, including “Kasmati” and “Texmati.” Another example Nicole brought up was Walmart’s Juneteenth ice cream which she described as tone deaf. Walmart was trying to capitalize on a holiday and failed to benefit the Black community in any way with the product. Keely noted that by adding the registered trademark symbol onto Juneteeth means that Walmart was trying to capitalize on the holiday in a way that felt very inappropriate.
Cultural Appropriation in the Tech Industry
Nicole discussed how cultural appropriation appears in the tech industry, not just in fashion and consumer packaged goods. Natives in Tech called out Apache Software, an open source software company, to change its name and logo, which includes a feather, a clear tie to the Apache Native American community.
Matal v. Tam
Nicole went on to discuss the Matal v. Tam case which was decided at the US Supreme Court. Simon Tam sued the USPTO after the USPTO refused to register the trademark THE SLANTS for his band name. The USPTO claimed that the mark should be refused from registration due to the disparagement clause as this term is considered disparing towards Asian Americans. However, the applicability of the disparagement clause means that the USPTO can deem a term disparaging without a measure of proving the disparagement. Ultimately, the case ended up at the US Supreme Court where the Court held that the disparagement clause was unconstitutional under First Amendment and that Tam could register the mark THE SLANTS.
While the Asian-American band members wanted to reclaim the disparaging term, Nicole expressed concern that the Supreme Court’s ruling might work adversely where people don’t want others claiming the term and this could be a step back for larger community who don’t want their terms being used commercially. Keely notesd that this decision shifts responsibility for what is appropriate from the USPTO to the public. It’s up to consumers to decide how they want to invest their money.
Navajo Nation Trademarks
Katherine went on to discuss Navajo Nation trademarks. The Navajo Nation has over 100 marks registered with the USPTO. The Navajo Nation works hard to police its marks, to ensure its marks are used appropriately, and to ensure that its mmarks are used with the Navajo Nation’s consent. She noted that when policing the Navajo Nation marks, many times people respond positively, but some responses have been adverse. If you are an enrolled member of the Navajo Nation you can use the Navajo Nation trademarks to help promote your own goods because people do pay a lot of money for these products. Navajo Nation wants to prevent cultural appropriation while providing a platform for Navajo citizens to allow their products to be showcased.
In a recent case, Navajo Nation v. Urban Outfitters, Navajo Nation sued Urban Outfitters for using the term “Navajo” to describe a jacket that was purportedly made with actual Navajo rugs. The jacket was made by a designer who is not part of the Navajo Nation. Katherine noted that this case produced the most aggressive pushback she’s seen. However, the jacket description was eventually changed.
Katherine described that other issues arose during the COVID-19 pandemic because people were trying to raise money for the Navajo Nation and using the term “Navajo” on GoFundMe accounts and using Navajo trademarks, symbols, flags and seals. People were raking in lots of money and it was important to make the distinction between those actually affiliated with the Navajo Nation and those were just “fans” of the tribe.
What Obligations do Trademark Practitioners Owe to Clients/General Public
The presenters concluded by discussing these important obligations to clients and the general public:
- Follow USPTO Rules of Professional Conduct §11.201
- Exercise due diligence
- Ask clients what the term means (what do they think it means and conduct your own research to determine what it means and if there is cultural significance)
- Don’t be afraid to stand up to clients and tell them it’s not a good idea, if you do use it there is a n particular approach to take, namely, involving someone from the community
- You have the right to refuse to apply for the registration or refuse the engagement
- If you don’t have much diversity in your background, hire a diverse team of people who may be more culturally aware
How to Pitch Cultural Sensitivity a Client who is Resistant
Lastly, Keely discussed how to approach cultural sensitivity with a client:
- Choosing a new brand involves many considerations that don’t fall under the trademark law umbrella that could prevent your mark from being registered.
- Consider other examples like phrases that have undesirable meanings in other languages that are otherwise registrable. Also, there are phrases with undesirable slang abbreviations (ex. MF) that are otherwise registerable. So these types of marks, while not barred from registration, are not necessarily marks that you would want to register, in the same vein as a culturally insensitive trademark.
- Communicating tone of the product (marketing teams get “try hard” or “edgy” and we have to decide if it’s really on brand).
She offered a few final points:
- Point out concerns and don’t be afraid to speak up
- Give examples of backlash for similar use before USPTO and in court of public opinion
- Suggest tweaks/alternatives without being cultural appropriative
- Give client all the information they need to make their decision
The presenters offered these ideas as takeaway conclusions:
- Ignorance is not an excuse, nor is history.
- We are in a moment of understanding and acknowledging that what was done in the past isn’t right anymore.
- Opportunity lies in the chance to work with people in these communities rather than simply borrowing from them.