Trademark Culture: Can Intellectual Property Law be Used to Thwart Cultural Appropriation in Fashion?

By: Melody Godbolt

From Katy Perry to Beyoncé, plenty of celebrities have been accused of cultural appropriation in one form or another. Instances of cultural appropriation or cultural misappropriation, defined as “the unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society,”[1] have garnered criticism and scrutiny due to the nature of the appropriated culture being exploited financially without any form of just compensation. Instances of cultural appropriation are often a topic of discussion in the fashion realm, where popular designers are often “inspired” by Indigenous and various other cultures and their designs, which are then incorporated into their fashion lines and paraded across runways around the world. Many cultures or communities look to intellectual property law to remedy what they perceive to be misappropriation of their culture. Unfortunately, the inspiring culture is often left without monetary compensation or a valid legal remedy due to the inherent premise of intellectual property law to protect the rights of original works without stifling the continued development of new, original works.
 
The issue has sparked many debates and efforts toward legal reform, with many scholars and reform advocates looking to trademark law, rather than the common, more complex use of copyright law, as an area of intellectual property law that is ripe for reducing cultural appropriation in fashion.  This idea is articulated in a BBC article entitled, When Does Cultural Borrowing Turn Into Cultural Appropriation? The article discusses a South African designer, Thabo Makhetha, who uses traditional blankets from her hometown of Lesotha, to design what has come to be known as Besotha blankets, which are named after the people of Lesotha. Ms. Makhetha began incorporating the blanket designs into her own fashion line, which she transformed into everyday outfits that could be worn at corporate, formal, and family events. Popular, French luxury brand, Louis Vuitton, was also inspired by the Basotho pattern, ultimately releasing a “Basotha Plaid” menswear collection in 2017. Although the expensive designs sold out quickly in South Africa, critics viewed the collection as merely a copy of cultural Lesotha designs.

 The issue of major brands being accused of appropriation is not a novel issue.[2]  However, the use of trademark law to assist in protecting traditional cultural expressions has found a more recent push. Registering a mark has many advantages to cultural groups such as, the registration serving as prima facie evidence of the mark’s validity and the mark owner’s ownership and exclusive right to use the registered mark, entitlement to nationwide priority in use, and registration may be used to stop the introduction of infringing goods into the United States. Despite the advantages of trademark law, critics cite various issues that would arise by allowing culturally significant products to be trademarked. For one, some opponents believe that the inherent nature of trademark law to protect owners of original works when they are in commerce or intended to be used in commerce would water down the authenticity and sacredness of the culture being trademarked. Additionally, identifying an “owner” of a culturally significant product could also lead to potential issues – 1) how do you identify what belongs to a given culture and then 2) how do you choose an owner when applying for a trademark registration that represents a culture?

The debate regarding protecting cultures and the methods used to do so are becoming more and more prevalent in intellectual property law. Indigenous people have been rallying for better protections for years; however, as recent as 2017, Indigenous advocates of the United Nation’s World Intellectual Property Organization initiated meetings with the United Nations as an effort to make cultural appropriation of their intellectual property illegal. With this continued push to protect culturally significant IP, many questions arise, such as: 1) is intellectual property law, particularly trademark law, currently able to assist in curbing instances of cultural appropriation and 2) if Indigenous people are able to make cultural appropriation against them illegal, what will that mean for other cultures of people looking to protect themselves, as well? These questions currently remain unanswered; however, in the quest to curb the cultural appropriation of cultures in fashion, is intellectual property law well equipped to deal with these social justice issues? Only time will tell.
 
[1] Oxford Dictionaries, https://en.oxforddictionaries.com/definition/cultural_appropriation (last visited Oct. 3, 5:30 PM) (defining “cultural appropriation”).

[2] See generally Tania Phipps Rufus, Companies accused of exploiting cultural identity of Kenya's Maasai, The Guardian (Aug. 8, 2013, 5:08 PM) (discussing the continuous exploitation of the Massai people by popular fashion designers and how the Massai people  have not been justly compensated for the use of their traditional patterns), https://www.theguardian.com/sustainable-business/ethical-exploit-cultural-brands-masai; Nicky Woolf, Urban Outfitters Settles With Navajo Nation After Illegally Using Tribe's Name, The Guardian (Nov. 18, 2016, 5:22 PM) (discussing Urban Outfitter’s use of the “Navajo” trademark, which they argued was a generic mark. The case ultimately settled), https://www.theguardian.com/us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement.