How trademark law enables cultural appropriation

In recent times, consumers have become increasingly conscious and vocal in their move to combat cultural appropriation. 

This awareness has extended to the fashion industry. Some fashion designers, even those well-versed in trademark law, have been under scrutiny for appropriating indigenous patterns. Consider how models are walking the runway in Native American headdresses. And let's not forget to mention the sale of offensive Halloween costumes by major retailers.

In response to public outrage, some have issued public apologies. Even so, the continued existence of trademarks like the Redskins’ Native American caricature is problematic.

And the actions taken by Aloha Poke Co. against native Hawaiians using "aloha" in their branding highlight that trademark law has yet to fully align with changing the public sentiment and sensitivity to traditional cultural expressions.

Understanding cultural appropriation

Cultural appropriation is defined as:

The adoption of "creative or artistic forms, themes, or practices by one cultural group from another," as per the Oxford Dictionary. 

Unlike other aspects of cultural expression, such as clothing and ceremonial traditions — language holds a unique position in the realm of commerce. 

The delicate balance between the freedom of speech and the government's regulatory control of commerce was brought to the forefront in the Supreme Court's ruling in Matal v. Tam (2017).

Trademark law serves the purpose of safeguarding consumers from source confusion. It also encourages businesses to cultivate positive brand reputations. While trademark law doesn't shield consumers from offensive, derogatory, or scandalous marks, this doesn't negate the significance of trademark law in addressing the issue of negative cultural appropriation.

Problematic trademarks

Consider trademarks like "NIZHONI" and "ALOHA POKE CO.". These use languages spoken by communities historically oppressed by the ancestors of the registrants. 

And the registrants are usually white males of American descent.

For instance, "Aloha Poke Co." is a fast-food establishment located in Chicago. It's owned by a white man. And he has taken legal action against native Hawaiians who incorporate "aloha" in their restaurant names. 

Similarly, "Nizhoni" represents a healthcare service in Massachusetts. This is owned by a white individual situated over 2,000 miles away from the Navajo Nation. 

Take note:

Not all trademarks that use foreign words are examples of negative cultural appropriation. 

However, consider how some American brands, for instance, use French terms to convey a sense of luxury for their products. Trademark law doesn't inherently distinguish between registrants using foreign words as negative or positive cultural appropriation. 

Instead, it focuses on whether the mark might lead to confusion with other brands.

Legal limitations and ethical considerations

Legal professionals, including those with expertise in intellectual property law, retain the authority to decline to work with clients pursuing culturally insensitive marks.

However, this course of action provides limited solace to Hawaiians and other indigenous communities. Their native languages may still be trademarked by privileged individuals.

One potential avenue for change is through congressional intervention.

Present laws, for instance, already prevent trademark registrations that could lead to confusion with established brands. 

Legislators could further strengthen these protections by enacting laws that expressly prohibit the registration of trademarks featuring indigenous words, such as "aloha." 

This issue gained traction in the 2018 midterm elections. Several candidates discussed the ban on Hawaiian words in trademark applications. All of this recognizes the pressing need for reforms in trademark laws.

Countering cultural appropriation through legislative action

The persistence of trademarks that appropriate indigenous languages, despite ethical concerns, suggests that the responsibility for change may fall upon legislators.

In cases where a trademark lawyer may appear unresponsive to the concerns surrounding the acquisition of monopolies on indigenous languages, it becomes imperative for lawmakers to take a stand. 

You must contact your state representatives to counter the appropriation of languages such as Hawaiian, Navajo, and Sioux by fast-food companies, sports teams, and other businesses.

You can voice your concerns about trademarks like the Redskins and Aloha Poke Co. and advocate for measures to prevent cultural appropriation. To find and contact your state representative, go to the United States House of Representatives website.