Icewine, Roquefort cheese and the Navajo Nation.

I’d like to tell you a story about icewine.

Picking frozen grapes for icewine.

Icewine is pressed from grapes that freeze on the vine, and is an incredibly sweet and expensive dessert wine.  Not everyone likes it, but I consider it a pretty decadent treat.

Canada is the largest producer of authentic icewine in the world because unlike many other wine-producing areas, Canadian vineyards experience some pretty cold winters.  It first started being produced here in the early 80s, but really gained traction in the late 90s and early oughts. A 375ml bottle will cost you about $45 Canadian here, but can go up to a couple of hundred smackarooneys on markets in China.

As you can imagine, ‘fakes’ started popping up fairly early both here in Canada and abroad.  To deal with the fakes here, B.C., Ontario and Nova Scotia set up special provincial legislation under the Vintners Quality Alliance (VQA) to regulate the production and quality of icewines produced from those regions.

The VQA is a wine appellation system, meaning that certain terms applied to wines can only be used if the product meets specific criteria.  It is illegal to use those names otherwise. When you see VQA on the label of an icewine, you as the consumer should be assured that what is in that bottle is of the highest quality.

Counterfeit Canadian icewine produced by China has become such a problem that Canada is now developing a national standard to address this kind of fraud. It can’t stop the fake production, but it can ensure that the reputation of Canadian icewine producers is backed up by quality assurances.

Appellation laws have existed in many countries for centuries.  Champagne originally enjoyed legal appellation protection under the Treaty of Madrid, 1891 which stated that only sparkling wines produced in a specific area of France could be called “champagne”.  This has been affirmed in various treaties and laws since.

Roquefort cheese was the first to receive the A.O.C. label (“Appelation d’Origine Contrôlée”) or Protected Designation of Origin in 1725.

Alcoholic beverages are not the only products to enjoy such legal protections.  Cheeses are another fine example, using something called a Geographical Indication (GI) to describe where the product comes from, guaranteeing everything from quality to specific production methods.

In Europe, these kinds of labels have to do more specifically with where the product is made.  Thus when you buy Roquefort cheese, you know it comes from a specific region in France.

The United States takes a different approach to some of these issues, where certain terms or names are considered a form of intellectual property, specifically a trademark.

Why terms like “Navajo” and “Native American” matter

You may have heard of the recent litigation launched by the Navajo Nation against clothing giant Urban Outfitters.

Brian Lewis, an attorney with the Navajo Nation Department of Justice, says the group wants Urban Outfitters to stop misappropriating the “Navajo” name and trademark.

“Although Urban Outfitters had said previously that it had stopped using ‘Navajo’ in connection with the sale of its products, it merely transitioned its misappropriation of the Navajo name and trademark to lesser-known websites and print advertisement — those of its subsidiaries,” Lewis said.

Urban Outfitter’s “Navajo Flask”

That’s right.  The Navajo Nation has trademark ownership of the name ‘Navajo’, and it has the legal right to stop people from using it to describe products that have not been approved by the Navajo Nation.  Just like Urban Outfitters owns the trademark to its name.

Urban Outfitters responded with this back in October:

“Like many other fashion brands, we interpret trends and will continue to do so for years to come,” he said. “The Native American-inspired trend and specifically the term ‘Navajo’ have been cycling thru fashion, fine art and design for the last few years.”

This is true, but won’t save Urban Outfitters from being held accountable for their trademark infringement.  “Everyone else does it” is not a legal defence.

But it could become one if the Navajo Nation does not enforce its rights.

Xerox begs you to say “photocopy” instead.

In trademark law, there is a concept called genericisation, where once a trademark becomes overused, it can expire.  A famous example involves the company, Xerox.  Its trademark was threatened when people began to use the term ‘xerox’ in the place of ‘photocopy’.  Only an aggressive ad campaign saved Xerox from joining the ranks of trademarks lost to colloquial use.

The lawsuit states: “The fame or reputation of the Navajo name and marks is such that, when the defendant uses the ‘Navajo’ and ‘Navaho’ marks with its goods and services, a connection with the Navajo nation is falsely presumed.”

Although the specific legal principles involved here may differ, use of the terms icewine, Roquefort and Navajo all have something in common.  They tell you something about what you are buying, and in this case, the Navajo Nation wants to ensure that consumers are not associating the term “Navajo” with ‘random south-west inspired hipster fashion’.

Fakers are not always so blatant

Skirting the Indian Arts and Craft Act

There are many ways around the multitude of appellation, geographic indicator, country of origin and trademark laws… and fakers love to exploit them.  Thus it is very much up to consumers to be aware of the standards involved in order to avoid being ripped off.

There is a statute in the United States called the Indian Arts and Crafts Act of 1990.  There is no such equivalent in Canada.  This law states that no person who is not an enrolled member of a federally or state recognised tribe can produce items labelled “Native American” or “Indian”.  In addition, members of one tribe cannot pass their items off as coming from a different tribe, so if your goods are labelled “Hopi”, you’d better be a member or a certified artisan of the the Hopi.

There are a lot of criticisms of this Act as it also forbids non-enrolled indigenous people from marketing their goods as “Indian” or “Native American”.  In fact quite a lot can be said about this statute and may well be in the comments later on!

Nonetheless, Urban Outfitters may also be in violation of this Act.  One popular way people in the US get around these restrictions is to use terms like “Native-American inspired” or “Indian style“.

Another way these laws are skirted is to claim that responsibility for violating them does not lay with you.  As recently pointed out over at Beyond Buckskin, Etsy is a haven for cultural appropriation and possibly even trademark violation.  When Dr. Metcalfe contacted the site about their ‘Navajo’ labelled goods, this was basically the response:

… Each shop is run independently by the shop owner, and the shop owner is responsible for their content and use of our services. By agreeing to our Terms of Use all members assure us they will follow all applicable laws while using our site. Etsy cannot judge the legality of items or the seller’s ability to legally sell an item…

This “it’s not us, it’s the people who use our site” approach was also taken recently by zazzle.com when Métis artist Christi Belcourt found her work being reproduced there by a vendor.

In an earlier post I asked you to “check the tag on that Indian story“.  I think that in general, checking the tags and labels, and  understanding what they mean is part of taking responsibility as consumers, whether you’re buying icewine, cheese, or Navajo products.

If you think that this case is frivolous or interferes with ‘freedom of expression’ and so forth, please ensure that you are not singling out indigenous peoples with this criticism.  If you take issue with intellectual property law, with appellation statutes, or geographical indication laws, then your concerns are not limited to us and need not focus on this case.

If however you just want to be able to call your stuff “Native American” or “Navajo” with no consequences, I’m afraid you’ve got some explaining to do.

Now go forth, savvy consumers, and do your best!

A shorter version of this article was published on March 2, 2012 on rabble.ca and on Indian Country Today on March 6, 2012.