As we learned in the Navajo Nation v. Urban Outfitters case, you generally cannot take the name of a tribe, put it on your products and market them as such. However, there are exceptions to that rule and we may have just stumbled across one involving Ralph Lauren and its “Buffalo Full-Zip Cowichan” sweater (pictured after the break below).
On the heels of the sweater's debut, the Vancouver Island Cowichan tribe is claiming that Ralph Lauren's sweaters are counterfeit, and alleging that the NYC-based brand is marketing its sweater under "false pretenses" as an authentic Cowichan product made by the tribe people themselves. These are essentially the same grounds upon which the Navajo Nation filed suit against Urban Outfitters in 2012, a case that has apparently still underway in the U.S. District Court for the District of New Mexico. The difference between these two instances, however, is that the Navajo Nation has current trademark registrations covering its name in the U.S. (and the Indian Arts and Crafts Act on their side), whereas the Cowichan do not appear to have either one of those. As a result, Ralph Lauren very well may be in the clear.
A quick search of the U.S. Patent and Trademark's database reveals that the Cowichan do not have any active federal trademark registration that protect the tribe's name (thereby, nixing their argument that Ralph Lauren's sweater is a "counterfeit" - as you may know, in order to be a counterfeit (as opposed to a mere infringement), the Cowichan would have to have a federally registered trademark registration for the class of goods at issue: clothing). As a result, the name very well may be fair play in terms of legality. Moreover, the Indian Arts and Crafts Act likely will not be of much use to the Canada-based Cowichan, as its protections only apply to American tribes.
While the law is not exactly on their side, the Cowichan are not completely out of luck thanks to the power of a bit of press. Chances are, Ralph Lauren will pull the sweater in no time in order to avoid the slew of negative publicity that will certainly come its way as a result of its selling the sweater in the first place. In fact, the negative publicity that may result from this sweater situation could end up being more costly than a lawsuit (albeit a bit more difficult to calculate that a legal bill), as brand image. This is particularly true for a brand, such as Ralph Lauren, that is situated slightly above the mass market (and thus, demands slightly higher prices) and for which brand image is an asset and one that is subject to depreciation, given bad press. In this way, by simply speaking out about the sweater, the Cowichan have likely won their case without ever even having to file a lawsuit.