When Fashion Brands Are Offensive …

Deciding on a logo or a brand name or even a collection name can be a daunting process. Or at least it should be. After all, a lot of money is spent on such tasks, so you would think that due diligence is just a given. And yet there’s plenty of proof that offensive content is not always something that’s avoided. The question is: Why?

Federal trademark law bars registration of trademarks with “immoral, deceptive, or scandalous matter”. And case law says that in order for a trademark to be considered scandalous, it must be shown that the mark is "shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; ... giving offense to the conscience or moral feelings; ... [or] calling out [for] condemnation."

What’s more, the United State Patent and Trademark Office states that design patent applications “which disclose subject matter which could be deemed offensive to any race, religion, sex, ethnic group, or nationality, such as those which include caricatures or depictions, should be rejected as nonstatutory subject matter”.

Essentially, two of the avenues best suited to protect fashion tell us that offensive material is unacceptable. And yet offensive and/or derogatory content is pretty prevalent in fashion. From ads to designs to logos, there’s no shortage of offensive material to go around. Why is it that when the laws make it clear that offending content won’t be tolerated and history has told us that people will react, brands still rely on said content? There’s certainly not a simple answer to this question, but the way we see it, there are three basic camps that offenders can be in.

The first: The all business camp. It might be that the people making the decisions just aren’t considerate of anything but a bottom line. Perhaps when Victoria’s Secret sent Karlie Kloss down a runway wearing an Indian-inspired headdress, or decided to sell a “Sexy Little Geisha” outfit as part of its “Go East” collection, the powers that be simply chose not to consider that some people might be offended. Companies that fall into this category may decide that cleaning up after any backlash (i.e. apologizing and/or ceasing the sale of certain products) is just part of doing business.

Second: The lazy camp. It could also be that decision makers don’t take the time to educate themselves before creating goods or a brand name. For example, when Urban Outfitters decided to sell “Navajo” wares, perhaps it was not known to the company that “Navajo” is a trademarked term and that it’s against the law to falsely state or imply that something is “Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization”. And it may be that Roberto Cavalli’s camp couldn’t be bothered with minimal research when creating its fragrance campaign – research that may have shown a probable conflict with the MTO Shahmaghsoudi School of Islamic Sufism.

Third: The camp that loves drama. For some, it might just boil down to actually wanting to be at the center of a controversy. Let’s face it, some designers and some brands seem to look for the dramatic and/or unexpected (hey, American Apparel).  Everyone involved in the process knows certain choices will bring controversy and is aware of all applicable laws but has decided that controversy is indeed a desired result.

There’s no simple and universal answer to explain every case of offensive ads, collections, and brand logos. But there are a few things we are certain about: Basic research will usually illuminate when something is considered cultural appropriation versus cultural appreciation. Basic research will also typically tell you what laws apply to certain circumstances. So unless you’re in the third group – in which you long for a controversy – minimal effort could prevent some costly damage control.

JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently awaiting admission to the NY State Bar. For more from Jennifer, follow her on Twitter.