Introduction [footnotes omitted]:
An American pop star dresses as a geisha for her performance at an award show. A French fashion designer uses a Mexican indigenous pattern on a blouse. American celebutantes wear Indian bindis at music festivals. A white actress appears on a talk show with her hair in cornrows, a distinctly African-American hair style. A Major League Baseball team has a caricature of a Native American chief as its mascot.
In recent years, instances of cultural appropriation, or the act of taking some product from a “source community” culture and repurposing it in a different culture, have drawn the scrutiny and condemnation of major news outlets and social media mobilizers alike. Popular criticism of cultural appropriation often centers on the lack of compensation to the source community for the use of their cultural product, or reputational harm due to perpetuation of negative stereotypes.
Source communities looking for remedial or preventative measures often turn to intellectual property regimes for protection in Western legal systems, where intellectual property laws often serve as the foremost line of defense for those intangible types of property. In the United States, source communities are turning to trademark law as a means for preventing non-community members from using their cultural products, with largely undetermined success. While much scholarship has been devoted to analyzing the applicability and efficacy of copyright law for curbing cultural appropriation, the applicability and efficacy of trademark law to achieve the same end has been given only a cursory treatment.
This paper, grounded in social science literature on cultural appropriation and foundational legal texts on trademark law, examines whether trademark law is suited to grappling with cultural appropriation. Part I forms the literature review of this paper: it includes a definition of “cultural appropriation,” a a first glance at the occurrence of cultural appropriation in the marketplace, and description of the harms and benefits of cultural appropriation and the potential harms and benefits of policing it. Part II attempts to apply trademark law to cultural appropriation, first by introducing the purposes of trademark law, then by presenting the requirements for trademark protection, before analyzing how source communities may be able to register their cultural products as marks and protect them from third party uses through trademark causes of action, given the particular characteristics of source communities and cultural products. Part III draws on the analysis in Part II to examine the potential efficacy of trademark law in grappling with cultural appropriation, the potential harms and benefits to the source community and to society by using trademark law to police cultural appropriation, and the propriety of applying trademark law to prevent cultural appropriation given the purposes of trademark law. The conclusion of this paper briefly reiterates the author’s findings: that trademark law is not particularly well suited to addressing cultural appropriation, and successful causes of action in trademark will be both difficult