26 October 2011

Cultural Identity and Marks

'The Case of the Zia: Looking Beyond Intellectual Property Laws to Protect Cultural Rights' (forthcoming in Chicago-Kent Journal of Intellectual Property) by Stephanie Turner explores an ongoing dispute in US trademark law involving use of the Zia pueblo 'sacred sun' symbol.

Turner comments that the Zia have been using the symbol in religious ceremonies since 1200 C.E.
The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.
Turner concludes -
... the fight to protect cultural rights is not an easy one. Over the past twenty years, the people of the Zia Pueblo have seen both successes and failures in their fight to protect their sacred sun symbol. But what is perhaps most striking about the Zia story is that non-legal measures — including education, political lobbying, and respectful negotiations — have proven far more effective in the tribe’s fight than has trademark law.

As we have seen, the Zia attempted to protect their sacred sun symbol twice during the 1990s by blocking registration under Section 2(a) of the Trademark Act. In both cases, the Zia succeeded at stopping commercial entities from obtaining registered trademarks containing the symbol. But they did not succeed thanks to trademark law; rather, they succeeded by exerting social and political pressure. Those attempts were symbolically important, but also costly and wearing, resulting in no helpful legal precedent. The Albuquerque Hearings further revealed that trademark law as it stood—and even the recommended changes—could at most provide an incomplete remedy for the harms incurred by tribes like the Zia. Even an improved version of trademark law would not provide the Zia with a sufficient amount of control over their symbol, nor would it provide them with monetary and other benefits for outsiders’ uses of their symbol.

This is not to say that our current trademark regime is entirely ineffective. To the contrary, for indigenous groups that can afford to use the legal system, it may indeed be one useful option. It is also entirely possible that a legal solution exists for the harms incurred by groups like the Zia. Amending Section 2(a) of the Trademark Act to include tribal insignia represents one possibility, though it may not be the best or only one. Certainly, the Government should continue to consider modifying trademark law to protect more fully tribal insignia and Native American cultural rights more generally.

Even as trademark law is an imperfect solution, the case of the Zia demonstrates that non-legal measures can fill the gaps and play a significant role in protecting cultural rights. The Zia repeatedly have turned to non-legal approaches over the past twenty years: they have educated the USPTO, demanded reparations from the State, garnered the political help of a Senator, and pressed Congress to fashion a new legal remedy. The Zia have not always achieved the results they sought, but their efforts did lay the foundation for the creative and effective system that the tribe uses today. By negotiating informally with commercial entities and the State, the tribe attains benefits — including donations to its scholarship fund, positive publicity, and political sway — that it never could find through trademark law.

The case of the Zia undoubtedly is unique and cannot speak to the needs of every indigenous group. But it strongly suggests that, in the current climate, indigenous groups should take a similar approach in the fight to protect their cultural rights. Indeed, Native American tribes can go even further than the Zia have in exploiting non-legal tools. The possibilities are endless — “protests, lobbying for legislation, and other methods of political pressure” are just a few. This lesson might prove most helpful to tribes that face situations like that of the Zia — that is, for those that seek specifically to protect their tribal insignia. But those whose claims would fall within the scope of trademark law — for example, groups seeking to protect their tribal names, and, indeed, the Native Americans hoping to cancel the Washington Redskins’ trademarks — should heed this lesson as well. Even more generally, indigenous groups who might turn to other intellectual property laws—including copyright and patent—to protect their cultural rights should consider looking to non-legal approaches in addition or instead. For ultimately, the case of the Zia shows us that non-legal measures may just be the most effective tools of all.