Protecting Tribal Intellectual Property

Protecting Tribal Intellectual Property

By Cheyenne Acree, Citizen of the Cherokee Nation (Tahlequah, OK), Pine Tree Legal Intern


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According to the Native American Rights Fund (NARF), the Penobscot Nation was one of the first tribes working on IP issues.

The protection of tribal IP is crucial for several reasons. First, the preservation and protection of cultural heritage and expression is foundational to supporting tribal sovereignty and protecting individual artisans. Second, protection of tribal IP promotes accurate representation of distinct tribal communities. Third, tribal business and individual artisans can rightfully control and profit from their creations and innovations.

According to the Native American Rights Fund (NARF), the Penobscot Nation was one of the first tribes working on IP issues. They have established a governing body, the Penobscot Tribal Rights and Resources Board, which “reviews, approves and oversees research that centers on cultural heritage.” The Penobscot Nation and the University of Maine have negotiated a Memorandum of Understanding (agreement) regarding research conducted by the university.

Trademarks

A trademark is a word, phrase, design, or combination that identifies one’s goods or services, distinguishes them from the goods or services of others, and indicates the source of goods or services. 

Jeep Cherokee. Chevy Cheyenne. Cleveland Indians. Navajo blankets. Tribal communities have been inundated with distortions and misappropriation of culturally significant words, tribal names, and images perpetrated by western corporate brands, sports teams, and non-tribal startups. In 2022, research conducted by the Center for American Indian & Alaska Native Health, describes a host of detrimental mental health impacts associated with the use of “Indian” themed mascots. Indigenous communities and organizations have come together to demand that the use of these distorted and demeaning images be stopped, with some success. 
 

At an increasing rate, tribal communities are leveraging trademarks to aid in this effort and in protecting tribal symbols. The United States Patent and Trademark Office (USPTO) has created a dedicated Tribal Insignia Database. Native American tribes may register their tribal insignia with the USPTO, which allows the office to find and consider insignia designs when reviewing a pending trademark registration. A pending registration may be denied if it implies a false association with a tribal registrant, creates a tarnishment of tribal insignia, or is confusingly similar to a registered tribal mark. 

Additionally, according to the USPTO, if “a Tribe believes that it will be damaged as a result of a pending application, it may follow the traditional means of protecting its insignias, names, and symbols by filing a Letter of Protest with the USPTO, and possibly filing its own application.” The database does not offer retro-active protection. Trademark law provides for limited protection for unregistered marks as well.
 

The Wabanaki Legal News is published by Pine Tree Legal Assistance, Inc. and is funded in part through a grant from the Legal Services Corporation. The views expressed by the authors in this newsletter are not necessarily shared by Pine Tree Legal Assistance or its staff.

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