Tradition Is a Trap

Abstract

Native Americans seem to be implicated in a disproportionate share of trademark and branding disputes.  From the more obvious fight over the cancellation of the disparaging trademark previously used by the D.C. football team to more “every day” trademark registration disputes questioning whether the use of trademark containing the name of a tribe refers simply to a geographic location or “falsely suggests a connection” with the tribe.  For example, using “Shinnecock” as a trademark on cigarettes was prohibited for falsely suggesting a connection to the Shinnecock tribe, because Native Americans have a historical affiliation with tobacco products; however, a car company can sell “Jeep Cherokees” because no reasonable consumer would make the false connection between the tribe and cars.  This problem of “frozen” minority representations in trademark law is not limited to only Native Americans as prior scholars have explored how trademark law’s implicit focus on the white male consumer gaze has perpetuated stereotypical ideas and images of African Americans and Asian Americans, for example, at various points in United States history.  This Article adds to that scholarship by exploring the history of Native Americans in American marketing and trademark law to connect that history to modern cases brought by Native Americans seeking to protect their cultural identity.  The struggles of Native Americans to fight racist trademarks and marketing imagery illustrates how trademark law’s reliance on stereotypes is not simply a glitch in the system caused by the speed at which consumer perceptions change.  Instead, the entire trademark system is built on a Eurocentric framework with ideas of “tradition” and “authenticity” at its foundation.  A trademark system that prioritizes tradition necessarily privileges those in the majority, those in power.  Conversely, it can trap minority groups in their disadvantaged “traditional” positions.  Because of this trap built into trademark law, Native Americans likely cannot seek redress for trademark-related harms through the courts and instead should consider redirecting their resources to public relations and community organizing efforts.