[Commons-Law] Fwd: <nettime> Aveda - Trademark on "Indigenous"

[Dev Gangjee]

Just another follow up on this - 
I wrote to the owners of the mark at their email address raising the descriptive/non-distinctive issues as well as the immorality of using such a mark, over a month ago and - as expected - never received any reply.
I was considering the possibility of striking the mark off on grounds that it offended morality based on a decision of the US Trademark Trial and Appeal Board called Pro Football Inc v Hajro, where Native American/First Nations complainants successfully argued that the use of 'Redskins' in the context of a sports team trademark was disparaging. (The scope of when a mark offends morality is a fairly gray and relatively unexplored area in TM law.)
However, even that scenario doesn't look too viable after the federal district court overruled this decision in Pro-Football Inc. vs. Susan Shown Harjo (Sept. 30, 2003). 
For more details, see - http://www.indianz.com/News/archives/001851.asp
  ----- Original Message ----- 
  From: Shamnad Basheer 
  To: Monica Narula ; commons-law at sarai.net 
  Sent: Monday, October 20, 2003 10:02 PM
  Subject: Re: [Commons-Law] Fwd: <nettime> Aveda - Trademark on "Indigenous"


  Apologies for waking up a little too late on this. Not sure if anyone has responded to this-if so, apologies for the repetition:   1. "INDIGENOUS" used in relation to cosmetics etc seems, at best to be a descriptive term-more so, when one takes a look at their website and finds that most products seem to be based on some sort of native  knowledge/tradition.   2. Being a descriptive term, "INDIGENOUS" cannot acquire the status of a trademark, till such time as it has been used so extensively as to be vested with a "secondary meaning"-i.e. consumers begin to connect these goods to the organisation that actually sells them.   3. I notice that at least in so far as the US applications are concerned, the date of first use is mid 2002. Unless massive amounts of money have been pumped into advertising and educating the consumer that "INDIGENOUS" denotes goods emanating from this one corporation, it seems unlikely that the mark would have acquired any sort of  secondary meaning in so short a while.     4. The mark has been registered in different countries and any potential challenge would have to be based on the separate laws of these countries. I notice that the mark has already been registered in Canada-opposition in such a case, would, I fear be rather difficult (and may not even be possible in some cases). On the other hand, in the US, where some of these applications are still pending, it may be easier to oppose at this early stage.   4. I'm not aware of any international regulation/norm that would govern this situation. (am not sure if one can mount a challenge based on the fact that this term denotes a certain class of people who may have special rights under international norms-and therefore the exploitation of  this term by a commerical venture ought to be prohibited).   regards-shamnad  
  Monica Narula <monica at sarai.net> wrote: 
    How in the world can Aveda do this??!! ANd i mean that not 
    rhetorically, but in real terms. This is tantamount to my 
    trademarking 'installation'!!

    best
    M


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