Photo from Getty Images

Lauren Romero is a JD Candidate at Southwestern Law School.

“That which we call a rose by any other name would smell as sweet” … but would that which we call a brand by any other name be as hype?

Founded in 2016, Los Angeles-based streetwear brand formerly known as Chinatown Market offers everything you’d need to fit in on Fairfax Avenue. Appearing on the “” podcast, founder Mike Cherman cites the New 91��ɫ street markets that he visited as a kid as inspiration for its name. The problem? As a white man, Cherman is an outsider who is profiting off the Chinatown name.

“Cultural appropriation” usually receives little attention or punishment from courts. Although huge name brands are often called out for it , “cultural appropriation” is a difficult cause of action to present. In a rare occurrence where cultural appropriation was brought to the court’s attention, the Navajo Nation brought a trademark infringement claim against retailer Urban Outfitters (UO). The case, filed in 2012 in the U.S. District Court in New Mexico, alleged that UO infringed the NAVAJO trademark in a way that inaccurately linked the Navajo Nation with designs printed on UO garments. While cultural appropriation was not a cause of action in this case, the discussion surrounding white-owned companies’ use of designs, names, and clothing belonging to another culture arose to the forefront of fashion law. Eventually, the case was settled for an undisclosed amount and UO agreed to collaborate with the Navajo Nation on authentic Native American jewelry. Issues of cultural appropriation continue to play out in the court of public opinion.

Photo from Twenty20.com

. Hashtags like #StopAsianHate flooded social feeds to bring attention to horrific attacks and show solidarity with the AAPI community. After noticing Chinatown Market’s silence, Julian Han Bush created an for Chinatown Market to rebrand. In the petition, Bush explains that “Chinatown is not for sale” and discusses the cultural significance of Chinatowns.

Businesses and community members in New 91��ɫ’s Chinatown suffered due to the COVID-19 pandemic. Lack of foot traffic resulted in lack of customers for many family-owned businesses; racism cast its ugly shadow on the once lively streets of Chinatown as community members fought against racist attacks. As a response, two New 91��ɫers began an initiative called to help struggling small businesses. They raised over $2 million to aid businesses in keeping their doors open. While members of the community helped one another during this time, Chinatown Market posted an Instagram story and offered a single shirt, with proceeds apparently going to AAPI organizations.

Photo from Market

The brand drew waves of criticism from folks on Instagram who argued that it was coming up short. Chinatown Market released a on May 20, 2021, acknowledging the discourse surrounding their name. They announced a name change along with a decision to sell all existing merchandise and donate the proceeds to non-profit organizations supporting the AAPI community. On August 15, Chinatown revealed their rebrand and began promoting new designs emblazoned with their new name, “Market”.

While a rebrand and donations are steps in the right direction, the conversation remains open. Can designers respectfully pay homage to cultures that they don’t belong to? Should they? These questions may not have solid answers, but I would like to provide some tips on how to appreciate cultures without exploiting them or taking them as your own.

At the 2015 Met Gala, Rihanna turned heads and broke necks in Chinese designer Guo Pei’s design. The theme for that year’s Gala was “China Through the Looking Glass,” which focused on the impact of Chinese design on Western fashion. As usual, Rihanna understood the assignment with the stunning design, which featured a massive canary yellow cape with waves of embroidered florals. While many high-profile guests chose to wear American or European designers, Rihanna highlighted a Chinese designer and gave visibility and appreciation to AAPI designers.

As individuals, we can shop consciously. Various streetwear brands similar to “Market” are AAPI-owned and/or do not appropriate AAPI culture. For example, Akashi-Kama is a sustainable Japanese-American streetwear brand founded by Alec Nakashima, who draws inspiration for his designs from both Japanese culture and American streetwear.

Noragi Jacket by Akashi-Kama

By putting our wallets where our mouths are, we can ensure that AAPI businesses flourish and that we are contributing to cultural appreciation and not appropriation.

The post The Market Value of Chinatown’s Culture appeared first on IPOsgoode.

From fast fashion to high fashion retailers, the fashion industry has been culturally appropriating the designs of Indigenous Peoples for years. Defining cultural heritage is a process. Though the United Nations Educational, Scientific and Cultural Organization (UNESCO) has as “the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity,” cultural heritage continues to be conceptually developed to reflect and encompass a more . Regardless of many companies’ knowledge of and awareness of the significance of Indigenous cultural heritage, there continues to exist a sense of ignorance regarding the impact cultural appropriation can have on a community.

In some cases, the Canadian IP rules and legislation, specifically in regards to trademarks, have benefitted and protected Indigenous Peoples from cultural appropriation. For example, the Cowichan First Nation has registered the trademark “Genuine Cowichan Approved” in order to help consumers distinguish between the authentic Coast Salish hand-knit sweaters and mass-manufactured counterfeits such as those found at and . With this said, though trademark registration can prevent counterfeits from using this “Genuine Cowichan Approved” label, trademarks cannot actually prevent the exploitative and appropriative use of Indigenous ideas, knowledge, and culture. Unfortunately, there still exists a lack of integration between Canadian IP law and the ownership of Indigenous designs in the fashion industry.

Take, for example, the case of United Kingdom-based fashion label, KTZ, and their 2015 men’s collection, which included multiple garments based on traditional Inuit designs. Specifically, was in shock after seeing her great-grandfather’s sacred garment directly copied. Unfortunately, this isn’t just a problem occurring with international retailers.

The North American brand recently went under fire for launching a Festival Shop. Several of the items from this line – although marketed to the young millennials attending various music festivals – ended up being blatant cultural appropriation of Indigenous Peoples. The reality is, it is not just the monetary value of the vast distribution of object and design that is the problem. In fact, it is more about how the images’ meanings are by such portrayal.

With this said, the protection of Indigenous cultural heritage against cultural appropriation through the use of Canadian IP law is difficult to actually implement, primarily due to the fundamental differences regarding the origins of Canadian IP law and Indigenous ethics. However, this is not to say that future reform in our IP laws could not assist this problem. Scholars argue the issue lies in the fact that the main goal of IP is to promote and protect innovation by awarding the inventor economic rights.[1]

First, the traditional knowledge of Indigenous Peoples does not normally meet the criteria of novelty and originality required by IP protection. Since traditional knowledge is it makes it difficult for this information to meet these novelty and originality requirements. Second, the fact that Indigenous ethics do not attach exclusive economic rights to cultural heritage makes it difficult to apply any IP protection.

Although designs in the fashion industry are the primary means for infringement, it is not the only way that Indigenous Peoples have lost their culture to society’s commodification. Take, for example, Toronto’s yearly and its cancellation due the cultural appropriation of various artists’ work. Although cancelling the exhibition may have temporarily solved a very narrow amount of cultural appropriation, this is not a long-term action plan. How, if at all, can our legal system better protect various Indigenous IP rights.

As stated by Rosemary Coombe, it is clear that work still needs to be done in Canada, even with various international remedies currently in place:

“New ways of recognizing and remedying such injury are being formulated internationally. Indigenous peoples’ advocacy has been central in this process, and the legitimacy of their participation in the international arenas in which these negotiations take place has achieved a high level of respectful recognition. Nonetheless, considerable work needs to be done to convince the general public that new forms of protection are necessary if Canadian governments are to be compelled to adopt the principles and objectives formulated internationally and effectively incorporate these into laws that will provide tangible benefit to First Nations.”[2]

The reality is, current IP laws will not be able to solve the issue of misappropriation or infringement for Indigenous Peoples. Rather, existing IP laws should be in order to address the needs of various Indigenous groups and their heritage. New concepts of ownership and control over cultural heritage must be implemented in Canadian law in order to deal with the tension and difficulties in protecting Indigenous traditional knowledge and cultural identity. Although the Federal Government has promised to , it is also essential to implement change at a grassroots level. Take, for example, to celebrate cultural appreciation. With initiatives as such taken at a grassroots level, there is greater opportunity to engage in discourse surrounding the issues of cultural appropriation. Ultimately, if you like Indigenous aesthetic, buy it from those who create it and live it.

Alessia Monastero is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

[1] Mohsen Ahmed, Nicole Aylwin and Rosemary Coombe, "Indigenous Cultural Heritage Rights in International Human Rights Law", C. Bell and R. Paterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (University of British Columbia Press) 311-342.

[2] Rosemary Coombe, "First Nations’ Intangible Cultural Heritage Concerns: Prospects for Protection of Traditional Knowledge and Traditional Cultural Expressions in International Law",  C. Bell & R. Paterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (University of British Columbia Press) 247-277.

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