in a legal fashion

The story has been wonderfully all over my twitter feed (@inalegalfashion), and I’ve wanted to give some explanation of how trademark law gives power to a woman and her design house as well as to an independent governmental body…and not to a pair of panties. Two pairs of panties actually.

Who knew there was a demand for western tribal style print undies? Who knew there was a supply?! Both Urban Outfitters and Forever 21 have been busted selling goods using the “Navajo” trademark in connection to their products. (Thank you Jezebel for the coverage). As a consumer you may make the connection with the use of the word “Navajo” to the western tribal style print seen below:

The Navajo Nation owns several trademarks for the various uses of the mark, “Navajo”. Search here for the Navajo Nation’s fashion trademarks for the use of “Navajo” in relation to “hand spun yarn for textile use” and for what sounds really beautiful to me, “neckties and leather belts of plain leather, and of leather ornamented with silver, and of leather ornamented with silver and turquoise or other trimmings, for personal wear”. Isn’t her jewelry amazing?

Since these trademarks are still live, the issue is about how they are used improperly. As per the Lanham Act, a trademark is to be used as an adjective, such that it signifies who makes the product. A trademark has no strength if the consumer does not think of the trademark holder when they see the mark. What do I mean? If everyone used the trademark “Navajo” to describe stereotypical tribal Native American print as mass produced by American corporations in China, the Navajo Nation would not be able to defend the word “Navajo” as solely signifying a product of their tribe. They’ve lost the the connection between the trademark and its holder, and the mark becomes merely a word used by the public. This is known as genericide. Companies, and in this case, nations must actively educate and demonstrate that they mean business when it comes to their trademarks or else they run the risk of the trademark becoming generic, and as such, does not indicate the source to the public anymore. The trademark holder loses their rights to the trademark, and essentially their enforcement rights over their product.

You can trust Mademoiselle Chanel would never allow genericide to tarnish her good brand name. Chanel, the design house, has issued this ad several times:

A year ago, Caseclothesed.com featured an article discussing Chanel’s polite and no-nonsense approach to educating consumers and editors alike that “Chanel” as an adjective belonged to Chanel and Chanel alone. Chanel’s motto: Protect the trademark, protect the brand, protection the reputation. Repeat. The best way for them to protect their trademark is to be proactively enforcing it. Trademark litigation can often times be more tedious than beneficial. I mean, there are cases where consumer confusion could never really be at issue. Allow me to let you in on a little secret: the ladies from the burbs know they’re buying fakes. And they’re doing so intentionally. Did I blow your mind? Of course the $45 Prada with the interchangeable Prada/Gucci/Chanel logo isn’t a real designer bag. And all this fighting for what? The profit off of a measly canvas or leather bag?

That said, I appreciate the proactive effort taken by Chanel and the reactive effort by the Navajo Nation to remind the public of their trademark and what it stands for. Sometimes what’s being protected is something that was once truly unique upon its debut; a true fashion rarity: an original idea. It’s these original ideas that put a brand on sturdy ground which eventually gives strength to the trademark. A simple tweed jacket is no longer just another simple tweed jacket; it becomes iconic along with the brand holding the rights to the trademark:

Other times, what’s being protected is the core of a culture and what may be the only legitimate protection the U.S. government has given to a tribe of people once forced to take “The Long Walk” – a walk they are still recovering from, mind you. The entire tribe of the Navajo Nation depends on their dedication to enforcing their name. Insensitively advertised products should be no reason why the tribe should give up defending their rights now.

As the fall season heads into its peak, western inspired prints remain a popular trend – and as they should, they are beautiful and are easily complimented by the northeastern foliage! If only what was being sold as “Navajo” print was really of the same quality of those goods produced by the real Navajo tribe members. Retailers just need to watch their wording. Thus far this kind of trademark enforcement has been successful for all parties involved, panties excluded.