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Tushnet, Rebecca --- "The Indian Arts and Crafts Act: the limits of trademark analogies" [2015] ELECD 1516; in Rimmer, Matthew (ed), "Indigenous Intellectual Property" (Edward Elgar Publishing, 2015) 250

Book Title: Indigenous Intellectual Property

Editor(s): Rimmer, Matthew

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781955895

Section: Chapter 10

Section Title: The Indian Arts and Crafts Act: the limits of trademark analogies

Author(s): Tushnet, Rebecca

Number of pages: 14

Abstract/Description:

The Indian Arts and Crafts Act 1990 (US) (IACA) is an attempt to provide specific, limited protection against deceptive marketing of ‘Indian’ arts and crafts from non-Indian sources. Classic examples of such marketing include jewelry sold under the brand name ‘Indian Maid’, (phonetically equivalent to ‘Indian-made’), and Indian goods made in a Philippine village whose name had been changed to ‘Zuni’ so that a manufacturer could label goods ‘made in Zuni’, falsely suggesting an origin in Zuni, New Mexico, and a connection with Indians of the Zuni tribe. While IACA has been amended several times in order to ease enforcement, it is not a general protection for cultural heritage, traditional knowledge, or traditional cultural expressions. In the US, IACA has been understood as not much more than an ordinary trademark law that has a specialized subject matter, with significant consequences for its scope even within the confines of deceptive marketing. My argument here will not be that IACA has been misinterpreted by administrative agencies or courts, but rather that its purely economic rationale means that it will continue to be unsatisfying to those who seek greater protection for noneconomic values, including cultural heritage. In addition, in the context of the American First Amendment, the analogy to trademark law makes IACA’s definitional project – identifying in advance and without empirical consideration of consumer understanding what is an ‘Indian’ product – seem dodgy from the outset, leading to a cramped interpretation of the law even from the perspective of pure economic protectionism.