Cultural Appropriation and Indigenous Intellectual Property

The conversation around cultural appropriation has grown in recent years as celebrities have come under fire for copying a culture’s traditional wear for aesthetic purposes. This is not the only form of cultural appropriation, as symbols, clothing, and traditional accessories have been poached for monetary purposes. These are considered indigenous intellectual property. 

The Role of Trademark Law

Trademark law has already been explored to solve the problem surrounding indigenous intellectual property. Under U.S. trademark law, indigenous properties cannot be protected for several reasons, such as the public domain. The main reason is that some words or symbols are not being used commercially by these tribes, so they do not receive protection under the Lanham Act, which is the federal statute pertaining to trademark law.  For example, a tribe seeking to register a mark in an attempt to recognize it as indigenous I.P. would be refused under Section 2(d) because a symbol can be refused if it is “confusingly similar to a registered mark owned by someone else and not abandoned.” Under Section 2(a), a mark cannot be approved if it implies a false connection with particular institutions. Suppose there is no previous knowledge of the symbol by those approving and no way for tribes to prevent their I.P. from being used. In that case, it allows corporations to profit off of groups whose sacred symbols are not afforded legal protection. 

What Can Be Done to Protect Indigenous Intellectual Property

As this issue has progressed, there have been conversations on a possible solution outside the law sphere. Three that have been suggested are international protection, domestic law recognition, and good faith. The first would provide protection no matter the use, so the commercial aspect would no longer be an issue. The second would protect symbols elsewhere if they have legal coverage in their country of origin. The third would be trusting corporations to research any potential cultural use of a mark before filing, which is thought to be the best temporary solution. In the case of the Zia tribe, success has been had with communication. Southwest Airlines wished to use the symbol, and after negotiations, the Zia tribe allowed it with financial compensation. This helped create an “informal licensing system” for the Zia, as the use of the symbol is allowed after negotiation and compensation, which typically comes in the form of donations to the tribe’s scholarship fund. As cultural knowledge and sensitivities progress, it is possible to return to trademark law as a solution to prevent appropriation. However, as of right now, nonlegal solutions appear to be the best route. As for individual action, the most can be done through making informed choices as a consumer. These include avoiding any product lines appropriating indigenous culture, not purchasing products that have no association with a tribe, and directly supporting indigenous artists and groups. As time goes on and this becomes a more talked about issue, indigenous groups will hopefully get the respect and compensation they deserve for the use of their sacred symbols.