From the Trail of Tears to Tam: How United States Trademark Law Fails Native Americans

21 Wake Forest J. Bus. & Intell. Prop. L. 29

The power of trademarks has long been evidenced in American society.
Trademarks wield tremendous commercial and social power,
capitalizing on the psychological function and effect of symbols to
provide legal protection to brands. Yet, what happens when an entity
creates and owns a trademark that is a representation of a people or race
who have no connection to the entity, makers of the product, or the
product itself? What happens when a brand misappropriates Native
American culture and imagery in its trademark because it is
commercially advantageous? Should trademark protection be extended
to a brand that publicly reinforces misconceptions and stereotypes?
Prior to 2017, section 2(a) of the Lanham Act barred trademark
registration for disparaging trademarks. However, in 2017, the
Supreme Court held in Matal v. Tam that the disparagement clause of
section 2(a) unconstitutionally violated the First Amendment. Not only
did the Matal v. Tam decision extend trademark protection to
disparaging trademarks (such as the Redskins), it also facilitated the
continued misappropriation of Native American culture in trademarks.
At the least, it is disheartening that the Lanham Act aims to protect the
goodwill that a brand has amassed over the years yet refuses to
recognize and protect the cultural goodwill that Native Americans have
built over centuries. This Article explores the treatment of Native
Americans through trademarks, analyzes the impact of the Matal v. Tam
decision on current and future protection of Native American culture,
and proposes a legal solution that seeks to balance Native American
cultural rights with the First Amendment right to freedom of speech.