February 22, 2008

Lumbee tribe vs. Lumbee cigarettes

Tribe tries to limit cigarette brand's appealLumbee leaders want to stub out any idea that the tribe has ties to a new cigarette that bears its name.

Lumbee cigarettes have been available in Robeson County stores since December.

Tribal leaders say they don’t like it, but they haven’t figured out if they can do anything to stop the company from using the tribe’s name.

What the tribe can do is get the word out that Lumbees don’t have anything to do with the menthol cigarettes. They don’t want anyone buying the smokes thinking they are supporting the tribe.
Key fact:Wayne Moss, president of Coastal Distributing, said he applied for the Lumbee trademark in September 2006.

“The reason that I decided to use the name Lumbee is because a lot of Indian-related names are in the market now … and I felt that Lumbee would be a good name for this part of the country,” he said.
Why the Lumbees object:Moss said he met with three tribal leaders and they had no objections to his plan. But when they discussed the plan with the tribe’s lawyer, tribal officials discovered that a program promoting tobacco prevention would conflict with any endorsement of the Lumbee cigarettes.

The tribe receives about $300,000 from the North Carolina Health Wellness Trust Fund to promote only cultural uses for tobacco. Tobacco traditionally was used to honor individuals and is used at pow wows and other ceremonies. It is also used in some traditional medicines.

“We understood the conflict and agreed that we would not be associated in any way with the tribe,” Moss said. “I still plan to contact members of Congress in an effort to support the tribe’s quest for recognition and federal benefits. I think it is something that would benefit every resident of southeastern North Carolina.”

Tribal leaders say they are concerned about the health risk associated with smoking. American Indians have the highest rates of smoking among North Carolina’s racial and ethnic groups, according to the North Carolina Center for Health Statistics.
Comment:  It's not clear if Moss got the trademark he applied for. Since tobacco is associated with Indians in general and North Carolina Indians in particular, I don't see how the feds could grant a trademark in this case. The law is supposed to prevent confusion among brands. But people buying Lumbee cigarettes are likely to conclude they come from the Lumbee tribe.

The article also raises a more general question. Can you really trademark a tribe's name without its permission? That doesn't seem right.

Let's suppose a tribe didn't have the foresight to trademark its name. In that case, could I create products with tribal names? For instance, condoms called the Narragansett Redskins? A Hopi machine gun? Kiowa malt liquor?

I could see permitting names that apply to broad cultural groups--e.g., Lakota, Cherokee, Chippewa--as well as particular tribes. In that case, no single tribe "owns" the name. But I have doubts about names that apply only to one particular tribe. Shouldn't that tribe get to control its own name?

This story shows how indigenous rights are sometimes in conflict with intellectual property laws. And why we should think about changing the latter to accommodate the former.

1 comment:

writerfella said...

Writerfella here --
Huzzah! Take up the war cry! If a faux Native tribe can protest their 'tribal' name on cigarettes, then let's get Lord Marlboro and Lord Chesterfield and Lord Raleigh and Herbert Tareyton and Philip Morris and Virginia Slim and Harley Davidson and Monte Cristo and even the Canadian Players to join in the protest! Now, that would be a crowd!
All Best
Russ Bates