The Navajo Nation, the United States' largest Native American tribe with more than 300,000 members, and Urban Outfitters, the United States' go-to vendor of crop tops, high-waisted jeans and T-shirts that remind people of the Holocaust and mass shootings, have been at war for a while.
In 2012, the Navajo Nation sued Urban Outfitters for its use of the word "Navajo" on a number of products, from underwear to colorful, shapeless shirts. Additionally, it accused the company of trademark infringement and of violating a 1990 law known as the Indian Arts and Crafts Act, which protects Native American-made designs and goods by prohibiting the "misrepresentation in marketing of Indian arts and crafts products within the United States."
The Navajo Nation is demanding that either all profits generated from all the items labeled "Navajo" go to the tribe, or they receive $1,000 for every day that the items were sold.
Of the several claims Navajo Nation has filed against UO, last week the Navajo Nation lost two. The reason? The word "Navajo" just couldn't be proven famous enough by the court. Copyright and trademark infringement is incredibly difficult to prove, with organizations, per the Federal Trademark Dilution Act, having to prove that their name or title can be deemed famous enough to be widely recognized by the general consuming American public. And in this case, the judge didn't think the term "Navajo" qualified.
According to the Fashion Law, U.S. District Judge Bruce Black in New Mexico said, "While plaintiffs' evidence may be relevant to their infringement claim, it is not legally sufficient to establish a 'famous' mark and, hence, to defeat defendants' motions for partial summary judgment on the claims for dilution by blurring and garnishment." He then further elaborated by saying that "'famous' requires more than just widespread distribution and significant advertising expenditures," though he acknowledged that "very few courts have found a mark legally 'famous.'"
Although the term "Navajo" is widely used, it's not strictly associated with the tribe, so it cannot be deemed legally "famous." And that's precisely what Urban Outfitters has been arguing all along.
Since 2011, when criticism against UO's use of Native-inspired prints and garments began, that has been the brand's one defense: that the term "Navajo" is a general term, unlike, say "Disney" or something with a clear brand. "Just as the term 'Light Beer' is generic for a type of beer that is light in body or taste or low in alcoholic and caloric content, 'Navajo' is today a generic descriptor for a particular category of design and style," lawyers for Urban Outfitters wrote in an April 2012 court filing, according to BuzzFeed.
Meanwhile, members of the Navajo Nation have rejected this idea, noting that it's much more than just the word "Navajo" that's bothersome, but the use of the culture's prints and aesthetic, which can lead people to believe that the products are coming from the Navajo Nation. The tribe also currently has several federal trademark registrations that include the word "Navajo," which UO continues to fight against.
However, the lawsuit isn't over just yet. There are still six counts in the case that are pending against UO and its sister companies Anthropologie and Free People, including trademark infringement, unfair competition and false advertising.
Still, on all of those retailers' websites, while "Navajo" was removed from UO's site years ago, terms like "tribal" run aplenty, with Free People currently selling 99 products with the term "tribal" in its description. This also comes just a few weeks after Free People got in trouble for its festival collection, which featured feather headdresses, a rainstick and a medicine pouch.
So clearly, as this lawsuit rages on, Urban Outfitters may have to realize it's time to rethink its aesthetic.