Either Target has not learned much from Urban Outfitters ongoing battle with the Navajo Nation or someone in the legal department is not doing his job, as the retail giant is currently offering an interesting bracelet as part of its Coachella-themed Festival Collection. The bracelet at issue: The Women's Cuff with Navajo Patterned Cut Outs, which is being offered in Target stores and online for $14.99 (pictured after the break below). The problem here stems from Target's use of the word Navajo and that problem very well may cost it upwards of one million dollars.
As you may recall, the Navajo Nation filed a multi-million dollar lawsuit against Philadelphia-based Urban Outfitters in 2012 in the U.S. District Court for the District of New Mexico, stemming from the hipster retailer's use of the word “Navajo” in connection with an array of products, including underwear, flasks, and socks.
According to the lawsuit, which is still underway (Urban Outfitters recently held that the Navajo Nation can't prove that the "Navajo" mark was "famous and distinctive" before 2001 [a requirement for a trademark dilution claim), when it began selling clothing products bearing the name, and urged a New Mexico federal judge to dismiss the Navajo's dilution claims from the suit], the Navajo Nation, one of the largest tribal governments of all North American tribes, alleges that Urban Outfitters is guilty of trademark infringement and dilution, as the tribe holds an array of registered marks for the word “Navajo.” But that's not all.
More interesting is the Navajo's claim that Urban Outfitters is in violation of the Indian Arts and Crafts Act of 1990, a federal truth-in-advertising law that prohibits misrepresentation in marketing of American Indian products within the U.S. According to the law, it is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian Tribe.
Put simply, you cannot use the name of an Indian tribe on your non-Indian made product or in connection with your non-Indian made product (if that product is even remotely close to one that may be considered an "art" or "craft"), as such usage will falsely suggest to consumers that it was made by American Indians when its not. Far from receiving a slap on the wrist, businesses found to be in violation of the Act may face civil penalties or can be prosecuted and fined up to one million dollars.
If we take the facts at hand into consideration, things don’t look so great for Target. Here’s why: First, Target is using the Navajo name in connection with the sale of a product. If nothing else, this likely amounts to trademark infringement, as the Navajo Nation has a federal trademark registration for the word “Navajo” in Class 14, which specifically covers jewelry; thereby, allowing the Navajos to prevent others from using that mark on jewelry and sue anyone that does (assuming that they can meet the key requirement for establishing trademark infringement -- showing that consumers are likely to be confused as to the source of the non-Navajo product).
In terms of the Indian Arts and Crafts Act, the situation seems similarly damning for Target, as: 1) a bracelet is a particularly risky product because it certainly falls within the “arts and crafts” category; 2) the Navajo Nation, as an American tribe, is, in fact, protected by the Indian Arts and Crafts Act; and 3) the Navajo Nation has been known to litigate such matters -- as we can see in the Urban Outfitters case. The tribe does, after all, believe its name and its proprietary designs are among its most valuable assets. Any questions?