In an open letter to Urban Outfitters by Sasha Houston Brown, Ms. Brown accused Urban Outfitters of taking “Indigenous life ways and artistic expressions and trivializ[ing] and sexualiz[ing] them for the sake of corporate profit.” She writes, “[t]here is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, Staring at Stars Skull Native Headdress T-shirt or the Navajo Hipster Panty.”

Leaving aside these arguably strong accusations that this clothing line is insulting and of poor taste, which Ms. Brown writes as “disrespect[ing] our history and undermin[ing] our sovereignty as Tribal Nations”, naming these articles of clothing “Navajo” was very likely illegal under IP law and the Federal Indian Commission Act.

The Navajo Nation Office of the Attorney General sent a cease-and-desist letter and issued this statement: “[w]hether spoken or written, the Navajo name and corresponding marks are what make all things that are actually associated with it exceptional. So when products that have absolutely no connection to the Navajo Nation, its entities, its people, and their products are marketed and retailed under the guise that they are Navajo in origin, the Navajo Nation does not regard this as benign or trivial. It takes appropriate action to maintain distinctiveness and clarity of valid name-association in the market and society.”

The Indian Arts and Crafts Act of 1990 “prohibits misrepresentation in marketing of Indian arts and crafts products within the United States.” Since no Native peoples were “involved in the production or design process”, the Urban Outfitters’ clothing most likely does not meet the definition of “arts and crafts” within the Indian Arts and Crafts Act. But the Navajo Nation owns 12 trademarks concerning the use of “Navajo,” some directly related to clothing products.

In response to these allegations of illegal use of the word “Navajo,” Urban Outfitters wrote: “The Native American-inspired trend and specifically the term ‘Navajo’ have been cycling thru fashion, fine art and design for the last few years. We currently have no plans to modify or discontinue any of these products.’” But soon after, Urban Outfitters did in fact remove the “Navajo” name from the product line.

So this is a victory for the Navajo Nation, right? Probably. But two larger issues remain. What if the Navajo Nation did not have formal IP protections? And, shouldn’t the Navajo-based print be protected? These two questions embody many of the tensions surrounding the argument for protecting traditional cultural expressions (TCEs), or expressions of folklore. According to WIPO, TCEs are “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community . . . or individuals reflecting the traditional artistic expectations of such a community.” TCEs include “music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.”

The difficulty in protecting TCEs revolves around the boundary between the public domain and the scope of contemporary IP protections. IP regulations, via copyright laws, authentication and certification marks, and geographic indicators, tend to not be a good fit for protection of TCEs. For example, how do you protect a Navajo design that “[t]o the western mind, and to those outside indigenous communities, … [has] often been regarded as belonging to the public domain, because [it] originated in centuries-old traditions, having no specific source or author.” Additionally, “the copyright system . . . does not easily extend to . . . [TCEs because they] are traditionally unpublished, often not fixed in tangible medium, created not by one individual known author but collectively, and created not on a certain date but over time.”

Although the Navajo Nation was successful here in stopping the use of the word “Navajo,” in many cases such TCEs do not have IP protections. Also here, the Native American print design remains unprotected. It remains very clear that Urban Outfitters is selling a product that is heavily influenced by a print originally designed and created by Native American cultures.

Unfortunately, the theft of indigenous design is not unique to this occurrence. (See Gaultier and Maori designs.) The recent controversy between the Navajo Nation and Urban Outfitters serves as a great reminder of how IP law can sometimes successfully protect TCEs, but it and other cases also illuminate the limitations that modern IP law has in protecting TCEs.