1
1 U.S. DEPARTMENT OF COMMERCE
2 PATENT AND TRADEMARK OFFICE
3 WASHINGTON, D. C. 20231
4
5
6
7 P U B L I C H E A R I N G
8 REGARDING ISSUES SURROUNDING TRADEMARK
PROTECTION FOR THE OFFICIAL INSIGNIA OF
9 FEDERALLY- AND/OR STATE-RECOGNIZED
NATIVE AMERICAN TRIBES
10
11
TRANSCRIPT OF PROCEEDINGS
12
13
JULY 8, 1999 - THURSDAY
14 9:00 a.m. to 3:00 p.m.
Special Events Building
15 Indian Pueblo Cultural Center
2401 12th Street, Northwest
16 ALBUQUERQUE, NEW MEXICO 87104
17 __________
18
19
20
21
22
23
24 REPORTED BY: CHARLOTTE MACIAS, NMCCR# 161
10708 Constitution Avenue, Northeast
25 Albuquerque, New Mexico 87112
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
2
1 A-P-P-E-A-R-A-N-C-E-S
2 FOR THE UNITED STATES DEPARTMENT OF COMMERCE, PATENT
AND TRADEMARK OFFICE, WASHINGTON, D. C. 20231:
3
Q. TODD DICKINSON, Acting Assistant Secretary of
4 Commerce and Acting Commissioner of Patents and
Trademarks, U.S. Department of Commerce, Patent
5 and Trademark Office
ELEANOR K. MELTZER, Attorney-Advisor, Office of
6 Legislative and International Affairs, U.S.
Patent and Trademark Office
7 STEPHEN WALSH, Associate Solicitor, Office of the
Solicitor, USPTO
8 ODETTE BONNET, Senior Attorney, USPTO
__________
9
C-O-N-T-E-N-T-S
10 SPEAKERS PAGE
11 COMMISSIONER Q. TODD DICKINSON, Commerce and PTO 3
THE HONORABLE JEFF BINGAMAN, NM Senator 6
12 THE HONORABLE TOM UDALL, NM Congressman 17
GOVERNOR AMADEO SHIJE, NM Zia Pueblo 24
13 GOVERNOR MALCOLM B. BOWEKATY, NM Pueblo of Zuno 30
LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo 42
14 5 YOUTH REPRESENTING 4 DIFFERENT NATIONS 43
LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo 46
15 FIDEL MORENO, NM President, American Indian CC 51
RICHARD POLESE, Exec. Dir., NM Book Association 55
16 MARGARET A. BOULWARE, President, AIPLA 61
DAVID C. MIELKE, Attorney, NM Pueblo of Zia 70
17 ROBERTA PRICE, Attorney, NM Pueblo of Zia 79
GERALDINE WARLEDO, Cheyenne-Arapaho Business Comm 112
18 LOREN PANTEAH, NM Zuni Jeweler, Cultural Arts 114
PETER PINO, Tribal Administrator, NM Pueblo of Zia 122
19 ISIDRO PINO, Religious Elder, NM Pueblo of Zia 137
SABRINA PINO, Children/Youth, NM Pueblo of Zia 140
20 PETER PINO, Tribal Administrator, NM Pueblo of Zia 141
GOVERNOR AMADEO SHIJE, NM Zia Pueblo 149
21 STANLEY PINO, Chairman, All Indian Pueblo Council 151
WILLIAM WEAHKEE, Exec. Dir., Five Sandoval
22 Pueblos; Petroglyphs Advisory Committee 158
PROFESSOR KENNETH BOBROFF, University of NM 164
23 A. DAVID LESTER, Exec. Dir., Council of Energy
Resource Tribes (Muskogee Creek of Oklahoma) 173
24 ELEANOR K. MELTZER, Closing Comments 182
REPORTER'S CERTIFICATE 187
25 * * *
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
3
1 P-R-O-C-E-E-D-I-N-G-S (9:14 a.m.)
2 MR. Q. TODD DICKINSON: Good morning.
3 Can everybody hear me all right?
4 AUDIENCE: Yeah. Yes.
5 MR. DICKINSON: My name is Todd
6 Dickinson. I'm the Acting Assistant Secretary of
7 Commerce and Acting Commissioner of Patents and
8 Trademarks of the United States. And on behalf of the
9 Patent and Trademark Office, I want to welcome
10 everybody here today and thank you for welcoming us
11 here to New Mexico.
12 I know that many of you have very busy
13 schedules and we're pleased to be able to provide this
14 opportunity for you. We're honored to be here and are
15 very interested in hearing your thoughts.
16 Let me assure you that all of your comments
17 today, both oral and written, will be very, very
18 carefully considered by us at the Patent and Trademark
19 Office.
20 As many of you already know, due to Senator
21 Bingaman's efforts, the 105th Congress passed a law
22 which requires that the Patent and Trademark Office
23 study a variety of issues surrounding trademark
24 protection for the official insignia of federally-
25 and/or state-recognized Navajo American Tribes.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
4
1 In order to gain the answers to questions such
2 as "What is an official insignia?" and "How might any
3 change to current law affect trademark owners?" and to
4 try to answer those questions, the PTO published two
5 notices in our Federal Register which is the official
6 publication of notices from agencies of the federal
7 government.
8 The first Federal Register notice was
9 published on December 29th, 1998, the second notice on
10 March 16th, 1999.
11 We received quite a few responses to both the
12 December and the March notices but written comments are
13 one thing. Live comments are another.
14 And we thought it would be particularly
15 important that we, the people from our office that are
16 here today, come directly to you to make available your
17 face-to-face comments so that the TPO really walks away
18 with an understanding of the depth of feeling on the
19 different issues involved with trademark protection for
20 official insignia of Native American Tribes.
21 We'll be having hearings here in Albuquerque
22 today.
23 On Monday, in San Francisco, California.
24 And on the --
25 MS. MELTZER: 15th.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
5
1 MR. DICKINSON: -- 15th, in Washington
2 D.C. and I think it's particularly fitting that we
3 begin the hearings here today in Albuquerque in this
4 lovely setting at the Indian Pueblo Cultural Center.
5 Before we get started, Ms. Meltzer, who is
6 staffing this hearing, has asked me to mention two
7 particular items.
8 First, if you have not already provided us
9 with a written copy of your presentation, please do so
10 today. That ensures that we don't make any mistakes in
11 transcribing the words you might have in your own
12 presentation.
13 You can also send your written comments to us
14 through July 30th. We've set a deadline of July 30th
15 because the statute requires we complete our study by
16 September 29th and we want to make sure we consider all
17 that information we receive.
18 We had a question about copies of today's
19 transcript. Copies of that transcript will be
20 available on our website by August the 10th, we're
21 hoping. Our website is www.uspto.gov.
22 We are here to listen, as I said. We had
23 about 20 speakers and we may have some more today so we
24 would feel free to ask that you keep your comments to
25 about 15 minutes. We will be fairly informal about
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
6
1 time but we want to make sure that everybody that wants
2 to have an opportunity to speak has that opportunity.
3 If we have any time left after scheduled
4 speakers have made their comments, we will accept
5 comments from the floor or if people would like to sign
6 up, they can do so I think in the front; is that right?
7 Or, in the back there.
8 I would ask that all speakers, when you do
9 come to the microphone, state your name and your
10 affiliation, if any.
11 And, again, I want to thank you for coming
12 here today or taking the time to come and testify. Let
13 me assure you again how important this is to us and how
14 serious we will take this matter. We are eager to hear
15 your comments on this very important topic.
16 With that, I'll introduce our first speaker
17 and we're very honored today to have your Senator, the
18 Senator from New Mexico, Senator Jeff Bingaman, who'll
19 be our first witness.
20 (Applause)
21 SENATOR JEFF BINGAMAN: Thank you very
22 much. Can people all hear me? Is this machine
23 working? Yes. Okay. Thank you very much.
24 I want to start by thanking Todd Dickinson,
25 the head of the Patent and Trademark Office Commission
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
7
1 for coming to New Mexico.
2 This is your first trip here?
3 MR. DICKINSON: Yes, indeed.
4 SENATOR BINGAMAN: We're very honored to
5 have you in New Mexico and we think this is where all
6 issues related to Indian people ought to be determined,
7 is right here in New Mexico, and so that's an
8 appropriate place, as you say, to start your hearings.
9 Eleanor Meltzer, thank you very much for all
10 of your help with organizing the hearing.
11 And, also, I want to thank all the people who
12 are here and I know there are others coming during the
13 day. I've seen the list of people who are going to
14 testify and we have had a very distinguished list of
15 presenters today so you'll get a good chance to see the
16 full range of opinion that we have here in New Mexico
17 on the issue.
18 These are important issues for Native
19 Americans in this state, as you know, not just in this
20 state, but for the 1.26 million individuals who are
21 members of over 500 federal- and state-recognized
22 tribes throughout the country.
23 In New Mexico, of course, many of our tribes
24 and pueblos have been in existence for many hundreds of
25 years before this area was ever settled by Europeans,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
8
1 the Spanish in particular.
2 So it's very important that we understand the
3 importance of these symbols and I think the study that
4 you're doing on protecting official tribal insignia is
5 long overdue when you consider the very long period of
6 time that some of these insignia have been in use.
7 Let me just go through the list. You cited
8 several issues you wanted addressed in the testimony
9 today and let me try to respond as best I can at least
10 on a few of those.
11 First, the Definition of Official Insignia
12 requested any thoughts anyone had on what that official
13 definition should be.
14 I look at official insignia as meaning any
15 insignia of a federal- or state-recognized tribe that
16 has been used as the official insignia of the tribal
17 government or is representative of the tribe.
18 Now, that may not answer all questions but I
19 think that's a good starting place for a definition.
20 Many of the nations in New Mexico have
21 formally adopted what I think of as an official
22 insignia. For example, there exists the Great Seal of
23 The Navajo Nation. The Great Seal of the Jicarilla
24 Apache Tribe.
25 These seals contain symbols of importance to
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
9
1 the tribes. They're easily recognizable as the
2 official seals of those particular tribes.
3 Though some tribes and pueblos have not
4 formally adopted official seals, many use symbols on
5 their government letterhead, on their calling cards
6 that are representative of the culture of the pueblo or
7 the tribe. Many have used these same insignia for
8 generations.
9 The insignia used by the Acoma Pueblo is
10 symbolic of the clans that make up the Acoma Pueblo.
11 The insignia also incorporates symbols of cultural
12 significance to the pueblo.
13 To those who are familiar with Native
14 Americans in this State of New Mexico, the Acoma
15 symbol, the Acoma insignia is representative of that
16 pueblo.
17 The second item or issue that you asked people
18 to address was the Establishing and Maintaining a List
19 of Official Insignia.
20 Establishing a list of official insignia, I
21 don't believe would be difficult because, as I
22 mentioned, I think it's fairly easy to determine in the
23 case of each tribe whether they have adopted an
24 official insignia.
25 For those who have not formally adopted such
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
10
1 insignia, a change in the law that would protect
2 official insignia would likely prompt the adoption of a
3 great seal or other official insignia by many of those
4 tribes.
5 And although many Native Americans share
6 common cultural symbols such as the eagle or the sun,
7 each tribe would be encouraged to adopt an official
8 insignia that is distinguishable from that used by
9 other tribes.
10 But with today's technology, maintaining a
11 list of these official tribal insignia on a database
12 should not be difficult.
13 If the Patent and Trademark Office is able to
14 catalog the official insignia of the United States and
15 of each state and of each municipality and foreign
16 nation as presently provided in the law, then it does
17 not seem that difficult to add to that the official
18 insignia for the tribes and pueblos that wish to adopt
19 official insignia.
20 The third issue you asked to be addressed was
21 Impact of Changes in Current Law or Policy.
22 And there's no doubt that a change in current
23 law and policy, in my view, is needed. The only
24 question is: What change will best protect the rights
25 of Native Americans and preserve the integrity of each
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
11
1 tribal nation?
2 What's become apparent, I believe, is that the
3 official insignia of tribal governments is not
4 currently protected by any law.
5 It's also become apparent that economic
6 development by tribes could be hindered unless we act
7 to deal with this.
8 Current law should be amended to protect
9 official and tribal insignia from being trademarked by
10 others for commercial gain.
11 As I've tried to look into this issue, I've
12 discovered the extent to which the Native American
13 names and symbols and images have been appropriated by
14 other non-Native Americans for commercial gain.
15 The appropriating of those names and symbols
16 and images continues and it will continue unless the
17 Patent and Trademark Office and/or the Congress take
18 some action to deal with this issue.
19 The impact on Native Americans, if we do
20 nothing, could be much more severe than the impact on
21 others if we choose to act. In New Mexico, all of the
22 pueblos and tribes are seeking to become economically
23 viable and their culture and their history is essential
24 to much of that development.
25 If we continue to allow companies and private
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
12
1 enterprises not affiliated with the tribes and the
2 pueblos to trademark products, for example "Zia
3 Popcorn" or "Navajo Bead Company" if they are not
4 officially tied to the tribe in some way, we threaten
5 the economic opportunities for those tribes and
6 pueblos.
7 If trademark law was intended to prevent
8 consumer confusion, which is one of the purposes of the
9 trademark law, as I understand it, and to assure
10 purchasers a certain level of quality in what they buy,
11 failing to prevent the misappropriation of Native
12 American names and symbols is contrary to the intent of
13 that statute.
14 In fact, I suggest there is an inherent
15 consumer confusion if a food product manufactured by
16 non-Native Americans in Delaware would be called
17 Pojoaque Peanuts. That would be not only detrimental
18 to consumers, it would certainly be detrimental to the
19 Pojoaque Pueblo here in New Mexico.
20 Although I have been using hypothetical
21 products in discussing this, the possibilities are
22 endless and they are occurring on a regular basis.
23 This country's fascination with native
24 history, Native American history and culture has at
25 times benefitted Native Americans but, more recently,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
13
1 has threatened the culture and economic viability of
2 each nation.
3 So protecting the official tribal insignia may
4 impact a few existing trademarks, but the failure to
5 protect official tribal insignia from being trademarked
6 will continue to negatively impact more than 500
7 tribes.
8 The fourth item you asked me to address was
9 the Impact of the Prohibition on Federal Registration
10 and New Uses of Official Insignia.
11 Prohibiting federal registration of trademarks
12 identical to official insignia of Native American
13 tribes should, at a minimum, confer certain benefits on
14 the tribes: 1) should provide the tribal government
15 with evidence of ownership of the official tribal
16 insignia, 2) should prevent others from trademarking
17 the official tribal insignia for use in commerce, and
18 3) should provide the tribal government with federal
19 jurisdiction to challenge an unauthorized user of that
20 insignia.
21 In order to accomplish these goals, we need to
22 be innovative and think through all of the various
23 possible issues in drafting of regulations or
24 legislation. I believe the testimony you're going to
25 hear today will help you to do that.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
14
1 As you know, we have the Native American
2 Graves Protection and Repatriation Act that Congress
3 passed in 1990. It was intended to recognize Native
4 American culture and protect cultural property.
5 We have the Indian Arts and Crafts Act, which
6 was passed back in 1935 and later amended in 1994,
7 which had an economic foundation as it has sought to
8 provide a market for contemporary arts and crafts by
9 assuring the authenticity of arts and crafts made by
10 Native American people.
11 Both of these laws were passed because of the
12 recognized need to protect the cultural identity of
13 Native Americans and the economic development
14 opportunities of Native Americans; and modifying the
15 trademark law to protect official tribal insignia is
16 the next step, as I see it, in recognizing the status
17 of each Native American Tribe.
18 You asked about Administrative Feasibility of
19 doing this, a change in this regard.
20 I don't believe the cost of changing current
21 law or policy would be significant compared to the
22 benefit that would be derived.
23 You asked about the Timing of Changes in
24 Protection.
25 I think whether or not the suggested changes
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
15
1 should be offered prospectively or retroactively will
2 require a deeper analysis of the issue. I don't really
3 claim to know the answer on that.
4 On the issue of Statutory Changes.
5 As you know, when I began to look into this,
6 we sought to amend the Lanham Act. I still think this
7 is the right thing to do to provide some protection for
8 official tribal insignia.
9 However, as I learn more about the
10 trademarking process and the extent to which tribes
11 have already participated in the trademarking process,
12 it became clear that some tribes have already
13 trademarked their insignia for use, commercially.
14 And any action that you take as a result of
15 this study, or any action recommended to Congress,
16 should take into account the Native American Tribes
17 have already sought protection under the existing
18 trademark law, so, any modifications to existing law
19 obviously should in no way prevent tribes that have
20 trademarked their insignia from using such insignia in
21 the stream of commerce.
22 In conclusion, I'm confident that you will
23 hear a great deal of useful testimony today.
24 Current law protects the official insignia of
25 states, municipalities and foreign governments.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
16
1 The flag of New Mexico is protected by the
2 Lanham Act and, as you know, the Lanham Act does not
3 prevent others from using the Zia symbol as portrayed
4 on the New Mexico flag, but it does prevent others from
5 trademarking the identical insignia.
6 I encourage you to offer the same protection
7 and respect for the flags and official insignia of each
8 of the five-membered state- and federally-recognized
9 tribes in the country.
10 Again, let me just thank you, Commissioner
11 Dickinson, and your colleagues for traveling to New
12 Mexico for this hearing.
13 Congressman Udall has joined us here and I'm
14 honored to have his strong support in this effort in
15 the Congress and we look forward to the results of your
16 study and then to determine what action the Congress
17 should take.
18 Thank you very much.
19 MR. DICKINSON: Thank you very much.
20 SENATOR BINGAMAN: Did any of you have
21 questions of me?
22 (Applause)
23 SENATOR BINGAMAN: Okay?
24 MR. DICKINSON: Thank you.
25 SENATOR BINGAMAN: All right. Thank you
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
17
1 very much.
2 MR. DICKINSON: Thank you for being here
3 and we appreciate your strong leaderership on this
4 issue and guidance --
5 SENATOR BINGAMAN: Thank you.
6 MR. DICKINSON: -- as we do our study.
7 And as everyone noticed, Congressman Udall has
8 arrived and we also welcome him and welcome his
9 comments, as well.
10 CONGRESSMAN TOM UDALL: Thank you.
11 Well, let me first, like Senator Bingaman did,
12 welcome all of you to New Mexico. It's wonderful to
13 have you here and I think that not only should you do
14 this hearing but I hope you have the opportunity to
15 travel a little bit in the rest of New Mexico and see
16 some of our pueblos and other beautiful sites in New
17 Mexico.
18 Let me, first of all, deal with the issue of
19 the definition since I know that you've asked about
20 that and I think Senator Bingaman has come up with a
21 very good one there. I think that's a good start.
22 I also, today, want to hear about what tribal
23 representatives have to say with regard to the
24 definition. But I think that's a good start and I
25 think that's the way we should proceed.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
18
1 Let me begin my remarks by first thanking
2 Commissioner Dickinson for hosting this hearing and
3 Senator Bingaman for his leadership on this important
4 issue.
5 In particular, I want to thank Commissioner
6 Dickinson and Senator Bingaman for arranging for this
7 first hearing on trademark protection for official
8 insignia of federally- and/or state-recognized Native
9 American Tribes to be held here in New Mexico, home to
10 23 recognized tribes, 18 of which are in the 3rd
11 Congressional District which I represent.
12 I think it is extremely important and
13 meaningful that we have started this process here where
14 it is essential to the lives of so many people, many of
15 whom will represent themselves and their thoughts on
16 this issue before you here today.
17 The issue of protecting the official insignia
18 of Native American tribes is, at its core, an issue of
19 equal rights and respect for sovereignty of Native
20 American people.
21 It is an issue whose time has come, only one
22 of many steps we must take to fulfill our obligation to
23 the Native American people both as sovereign nations
24 and as American citizens and it is increasingly an
25 important issue as the commercialization of Native
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
19
1 American symbols continues each day at an seemingly
2 unbridled pace.
3 Because of this, it is important that we
4 explore this issue both carefully and thoroughly but
5 also expeditiously as we provide tribes with the basic
6 level of protection they deserve.
7 While there are many fine points of this issue
8 to be explored, I will try to be brief and focus my
9 comments on the critical need for this protection.
10 The finer points of this issue I will leave to
11 be explained best by the many tribal representatives
12 and expert witnesses we have here and throughout the
13 country waiting to comment.
14 I want to add that I personally look forward
15 to learning more about their thoughts on this issue.
16 First, let me express my belief that official
17 tribal insignia deserve the very same level of
18 protection provided to other recognized governmental
19 agencies such as states and municipalities and also
20 foreign entities.
21 We must remember that recognized Native
22 American tribes are sovereign nations and, with their
23 own equally legitimate systems of government, are
24 equally deserving of protection under the law. Not
25 extending the same level of protection, to officially
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
20
1 protecting insignia of tribes that is lent to state
2 flags and city seals, is patently unfair.
3 Moreover, as I briefly mentioned before, the
4 commercialization of Native American symbols is a
5 readily apparent reality in the country.
6 And The New Mexican, today, I think did an
7 excellent job at highlighting two examples with regard
8 to the Zia symbol.
9 We have had, in the last year, two companies
10 attempt to trademark the Zia symbol. One, the American
11 Frontier of Motorcycle Tours Company has attempted to
12 trademark the Zia symbol and, also, a pharmaceutical
13 company has tried to trademark the Zia symbol. So this
14 shows the need for us to move expeditiously.
15 While many of these cases are not
16 appropriations of official tribal insignia, considering
17 this growing popularity, the growing popularity of
18 Native American goods, foods and culture, it is likely
19 only a matter of time before an unprotected tribal
20 insignia is misappropriated either intentionally or
21 unintentionally.
22 Considering Native American people's own
23 economic development endeavors, a threat of such
24 misappropriation could also entail very real economic
25 consequences by allowing others to capitalize on the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
21
1 popularity of insignia typically associated with
2 particular tribes, such as Zuni jewelry or Santa Clara
3 pottery or the Zia symbol.
4 In fact, as I'm sure the Patent and Trademark
5 Office is already aware, several tribes have already
6 filed lawsuits against businesses or individuals for
7 misappropriating tribal symbols for commercial ventures
8 or products.
9 While I did commit myself to being brief and
10 leaving details of such protection to be defined most
11 appropriately by tribal representatives and other
12 expert witnesses, I do want to make three short
13 comments on the feasibility of such protection before
14 concluding.
15 First, I believe that such protection can
16 actually be accomplished without much additional cost
17 in terms of changing or implementing the law.
18 It should be a rather simple effort to
19 register tribal insignia in much the same way as state
20 and local government insignia are registered. And, as
21 such, the additional cost and the process should be
22 minimal.
23 Second, on the question of such protection, on
24 whether such protection should be applied
25 retrospectively, I generally believe that the most
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
22
1 critical need today is to protect any further
2 misappropriation of official tribal insignia.
3 With that said, then I believe the greatest
4 need for action is for prompt registration and
5 respective protection of official tribal insignia.
6 I also want to stress that I do not think it
7 is in anyone's interest to have blatantly improper past
8 misappropriation of tribal insignia go unaddressed.
9 However, I also agree with Senator Bingaman's comment
10 that serious thought must be given on how such matters
11 should be addressed.
12 And, finally, any proposed resolution to this
13 issue needs to be designed so as not to jeopardize any
14 commercial trademark registered by Native American
15 tribes or prevent tribes from redefining and protecting
16 currently registered tribal trademarks as official
17 insignia.
18 In some instances, tribes have already
19 registered official tribal insignia as commercial
20 trademarks both to protect the insignia as well as to
21 use it for commercial branding.
22 And, as such, these tribes might potentially
23 face some problem in terms of designating their
24 official insignia. This would be precluded by the
25 insignia's previous registration as commercial
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
23
1 trademarks or would jeopardize the registration of the
2 commercial mark; therefore, due consideration should be
3 given to the appropriate handling of this matter.
4 Once again, let me thank Commissioner
5 Dickinson for holding this hearing in our fair State of
6 New Mexico and Senator Bingaman for his notable
7 leadership on this issue.
8 It has been an honor and a pleasure to testify
9 on this issue. I look forward to continuing my work
10 with all of you and especially with Native American
11 people that I have the good fortunate to represent.
12 Thank you very much.
13 MR. DICKINSON: Thank you very much,
14 Congressman.
15 (Applause)
16 MR. DICKINSON: Thank you for your
17 presence here today, as well. Thank you.
18 What we'd like to do now, if the folks would
19 move the mike back, is to invite up the witnesses in
20 groups so that we can hear from all of you and
21 hopefully do it in a expeditious way and also maybe to
22 give some opportunity for questions and colloquy going.
23 Let me invite up now Governor Amadeo Shije of
24 the Zia Pueblo.
25 (Applause)
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
24
1 MR. DICKINSON: And Governor Malcolm
2 Bowekaty of the Zuni Pueblo.
3 (Applause)
4 MR. DICKINSON: Is Mr. Talache here? Let
5 me just see who is here, by the way. Is Mr. Talache
6 here? [Nambe Pueblo] Would you mind coming to the
7 witness stand, as well?
8 Thank you. I've never appeared before two
9 Governors before, so I don't know, actually I'm
10 unclear; but I'm quite honored to have you both here
11 today.
12 Would Governor Shije mind going first? We'd
13 appreciate that.
14 GOVERNOR AMADEO SHIJE: Thank you.
15 Thank you, Commissioner Dickinson and members
16 of the Patent and Trademark Office.
17 Before I go into my testimony I would like to
18 introduce to you members of my pueblo who have come out
19 today. There are Elders of our pueblo. There are also
20 young people as well as some of my fellow officers.
21 So if the people from Zia would, behind me,
22 stand up or raise their hands, it would be appreciated.
23 (Approximately 30 stand. Applause)
24 GOVERNOR AMADEO SHIJE: Members of the
25 Committee, I am Governor Amadeo Shije from the Pueblo
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
25
1 of Zia.
2 I have come to you to give testimony
3 concerning the amendment of the Trademark Act to
4 prohibit registration of the official insignia of
5 Native American tribes.
6 I am here to speak on behalf of the Pueblo of
7 Zia - Zia is a federally-recognized tribe - and to
8 speak about the Zia sun symbol and its importance to
9 the people.
10 I understand you had made some comments in as
11 far as how we should follow the outline but I will
12 leave that outline to the legal people behind me who
13 will speak on behalf of the Pueblo, mainly because it
14 is often hard to explain Indian cultures and issues in
15 western legal terms.
16 Although the Zia sun symbol is certainly the
17 official insignia of the Pueblo of Zia, it is much more
18 because long before Columbus landed on this continent,
19 long before the United States was founded and even
20 before the presence of the Europeans and even before
21 the Trademark Act was implemented and since time
22 immemorial, the Zia sun symbol existed.
23 The Zia sun symbol was and is a collective
24 representation of the Zia Pueblo. It was and is
25 central to the pueblo's religion. It was and is a most
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
26
1 sacred symbol. It represents the tribe itself.
2 The tribal government has both used the three-
3 and four-pronged sun symbol always pursuant to the
4 permission of the religious elders.
5 The Pueblo of Zia is a very religious pueblo.
6 In the early 1640s, there were approximately
7 15,000 Zias living in five distinct villages. We
8 survived the atrocities at the hands of the Spanish and
9 Mexican governments.
10 By the late 1800s, the population was less
11 than 100 Zias. Today. As I speak, we are over 850
12 strong.
13 The Pueblo of Zia is here, and that our
14 culture is still alive is testimony to our physical and
15 cultural and, above all, spiritual strength and
16 strength of the symbol that we hold sacred.
17 Our religion is intertwined with every aspect
18 of our lives, including our government. The Zia sun
19 symbol is so important that it is not discussed,
20 described outside the village's ceremonies.
21 It is therefore difficult to meet fully the
22 requirements of the public testimony that the Patent
23 Office requires.
24 Nevertheless, besides me and an elder of our
25 tribe, our Tribal Administrator and even a very young
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
27
1 member of our tribe will testify today. And following
2 them, will be two of our pueblo attorneys. They will
3 discuss the technical terms of what you request here
4 today.
5 The Zia sun symbol is essential and
6 fundamental to the identity of every member of our
7 tribe. It is important that the Trademark Office not
8 officially condone and thereby encourage its commercial
9 usage and appropriation by others.
10 Our Tribal Council passed a Resolution
11 declaring the three- and four-pronged Zia sun symbol as
12 an official insignia of our tribe.
13 To the Pueblo of Zia, four is a sacred number,
14 as it is to many of our Native American tribes.
15 It recalls the four directions. The four
16 seasons. The four phases of a day - sunrise, noon
17 evening and night. And the four stages of life -
18 childhood, young/youthhood, adulthood, and old age.
19 As part of this testimony, we will submit
20 examples of our official use of this symbol over past
21 decades and over past centuries, as well.
22 But it is much, much more than that to our
23 people. I understand that the Trademark Act has long
24 prevented federal registration of the flag or coat of
25 arms or other insignia of the United States or of any
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
28
1 other state in the United States or even of any foreign
2 nation; it prohibits federal registration of symbols
3 which falsely suggests a connection with beliefs and
4 national symbols or brings these symbols into contempt
5 or disrepute.
6 What our tribal members and our pueblo
7 government ask today is very little; that the Trademark
8 Act treat us just like any other governmental entities
9 and without these United States, just as the Senator
10 and Representative mentioned today - We have to do
11 something about curtailing this influx of usage of the
12 symbols.
13 I know there are other symbols that are
14 important to other tribes. These tribes will speak for
15 themselves about this. It is not my place to discuss
16 the official insignia and symbols which identify other
17 pueblos and tribes.
18 But I will say that the injury that my people
19 have suffered from the disrespectful use of the Zia sun
20 symbol has been very, very deep.
21 The history of the European in this continent
22 has been a long history of unauthorized taking. We are
23 in the beginning of, I hope, a different frame of mind.
24 I do not see how the Trademark Office in good
25 conscience can give a person, foreign to our nation,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
29
1 the right to use our symbol on a chemical fertilizer or
2 a porta-pottie or whatever business or service he is
3 peddling.
4 Under the existing law, other governments in
5 this country are protected from such an affront.
6 I understand that there are separate statutes
7 protecting the Boy Scouts' insignia and the Red Cross.
8 Even using western logic alone, without using any kind
9 of compassionate understanding of our culture and our
10 way of life, the official insignia or symbols of the
11 sovereign tribes should be protected as much as the
12 symbol or insignia of municipalities, states, foreign
13 states and so forth.
14 I thank Senator Bingaman and Representative
15 Udall and the Congress of the United States for
16 perceiving the logic of amending the Trademark Act to
17 prohibit registration of the official insignia of
18 federally- and/or state-recognized Indian Nations.
19 I thank you on behalf of the Pueblo of Zia for
20 the courtesy of understanding that we are citizens of
21 the United States and that the symbols of our
22 governmental entities should be given equal treatment.
23 I urge the Congress and the Trademark Office
24 to make right and amend the legislation that neglects
25 the existence of Native American governmental entities,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
30
1 our insignias and our identities.
2 These are my statements and I thank you very
3 much.
4 MR. DICKINSON: Thank you very much,
5 Governor.
6 Are there any questions from the panel?
7 We have had some registrations brought to our
8 attention that were rejected and eventually abandoned
9 for the sun symbol and maybe this is a question later
10 for your attorneys; but I'm curious if there are others
11 that we may not be aware of and may not have been
12 brought to our attention, that should be brought to our
13 attention that would be of particular concern to you.
14 GOVERNOR AMADEO SHIJE: I am not aware of
15 that at this time but what I will do is, when my Tribal
16 Administrator speaks and gives his testimony, maybe he
17 can answer that question for you. Okay.
18 MR. DICKINSON: Thank you very much.
19 Governor Bowekaty. Did I pronounce your name
20 right?
21 GOVERNOR MALCOLM B. BOWEKATY: Yes, it
22 is. Before I start, I'd like to give you a copy of the
23 report and give you an opportunity to review it.
24 First of all, I'd like to thank the two
25 Senators that were here, Mr. Bingaman, and The
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
31
1 Honorable Senator Redmond [CONGRESSMAN UDALL]; but,
2 also, my colleague, Mr. Shije. He's an eloquent
3 speaker.
4 It is certainly an honor and a privilege to
5 present my people's thoughts on the new law. This is
6 the Pueblo of Zuni's official statement and testimony
7 on Public Law 105-330.
8 Let me preface by sharing experiences of my
9 people in valuing protection of tribal artistic
10 expression and designation of ownership.
11 For my Zuni people, as well as for countless
12 other Native American tribes, our seals, our flags, our
13 phrases have deep cultural and religious significance.
14 Deep thought, consideration and artistic merit was
15 exercised by our Zuni people prior to adopting the
16 insignia.
17 If you look at the letterhead and the business
18 cards, you'll know what I'm talking about.
19 The discrete design elements on our Zuni
20 tribal seal incorporate centuries-old identifying
21 markers.
22 For example, our ancestors used the four-
23 pointed star to designate Zuni handiwork, religious
24 paraphernalia and boundary markers. This also is a
25 source of pride that is collectively owned and shared.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
32
1 Therefore, the process currently proposed is
2 new, yet, the realities of commerce and marketing have
3 taught harsh lessons for our people.
4 My people have been cheated and duped from
5 inuring financial gain by unscrupulous merchants and
6 thieves who duplicate and cheapen fine craftsmanship in
7 the form of Zuni jewelry, pottery and kachina carvings.
8 Protecting my people's livelihood and their
9 artistic expression by whatever means possible is
10 paramount. Protecting our cultural heritage is the
11 obverse side of the same coin.
12 With trepidation, we need to explore,
13 experiment and apply federal law and policy in
14 protecting images, icons and artistic expressions.
15 But we also reserve the right to secede, if it
16 does not work for our interests, because we have seen
17 the paper tiger of the "Indian Arts and Crafts Act".
18 The definition of "Official Insignia".
19 The duly elected and duly authorized Tribal
20 Governors, Chairmen or Presidents and the Tribal
21 Councils must be the determiners of what constitutes
22 the official insignia of the Native American tribe.
23 The official insignia may be a tribal seal, a tribal
24 phrase, or both, a stamp, a banner, a flag or a
25 painting.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
33
1 A Tribal Council Resolution adopting such
2 insignia should be part of the documentation.
3 The fundamental point is, the tribes
4 themselves define, determine and submit an "official
5 insignia" or "insignias" to the Patent and Trademark
6 Office.
7 The Patent and Trademark Office must consult
8 with each tribe to seek submission of its official
9 insignia.
10 As to the question of Establishing and
11 Maintaining a List of Official Insignia, it must be
12 incumbent on the Patent and Trademark Office to consult
13 with officials of each Native American tribe.
14 Subsequently, an initial submission period for
15 tribal insignia should be defined whereby a database
16 can be established or the forerunner to an "Official
17 Principal Register of Tribal Insignia."
18 This trial period should facilitate an orderly
19 and voluntary inclusion by tribes to protecting their
20 insignia if they so desire.
21 Furthermore, the Patent and Trademark Office
22 will then be able to review and identify similar
23 insignia that may be problematic or questionable.
24 It must be the Patent and Trademark Office's
25 responsibility to research similar insignia to
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
34
1 determine if infringement of tribal insignia occurred.
2 In the future, by requiring Tribal Council
3 Resolutions adopting their official insignia as part of
4 the documentation, this risk should be eliminated.
5 Procedures that allow modifications,
6 amendments or cancellations to the principal register
7 will then be easily accomplishable. It will also allow
8 tribes to evaluate if this process is meritorious or
9 fraught with ambiguity.
10 Looking forward, this process will allow
11 future state or federal recognition of tribes to
12 participate in the Act as, no doubt, they will be
13 recognized tribes.
14 Once an "Official Principal Register of Tribal
15 Insignia" is defined and finalized, the Patent and
16 Trademark Office should reverify every 10 years.
17 Sending out the register to each tribe will
18 allow a dynamic process to occur and protection
19 mechanisms to be integrated or developed if warranted.
20 Only the duly-authorized tribal leaders may
21 amend, update or cancel the insignia register. This
22 will assure protection and the integrity of the
23 database.
24 As to the "Current Impact in Changes".
25 Any changes that protect official tribal
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
35
1 insignia are positive. Well-meaning and unscrupulous
2 people have already infringed on tribal insignia;
3 therefore, any sanctions that are explicitly protective
4 of tribal expression, language and images can only
5 strengthen the prohibition of copying "Official Tribal
6 Insignia" - unless duly authorized by the specific
7 tribal leaders or Tribal Council.
8 Here in New Mexico, my colleague, Mr. Shije,
9 has already talked about the Zia Pueblo. Zia Pueblo
10 has already undertaken protracted and expensive
11 litigation on the infringement of their tribal "sun"
12 symbol without much success.
13 Had this law been in place, a trademark search
14 would have uncovered trademark infringement on Zia
15 Pueblo's "sun" symbol.
16 Another example, drawing from the diversity of
17 experiences that we all have, is from my pueblo, Zuni,
18 where my people are famous for exquisite works of
19 turquoise jewelry.
20 Our people hoped that, with the Indian Arts
21 and Crafts Protection Act, the protection of insignia
22 and artistic expression would be protected, let alone
23 the name of our tribe, "Zuni". This wasn't so. The
24 Act required posting country of origin of jewelry and
25 specified "Indian Handmade."
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
36
1 However, a city in the Philippines
2 incorporated their town as "Zuni, Philippines", not
3 "Zuni, New Mexico."
4 This has allowed infractions to continue
5 without a means to enforce copyright or trademark
6 infringement laws.
7 I am sure you have heard similar stories or
8 you will hear similar stories during these field
9 hearings.
10 We also have another example; the term, the
11 word "Zuni", as in the name of our tribe. Yet, it is
12 patented and trademarked by the Patent and Trademark
13 Office and it has been renewed and, unfortunately, this
14 has no relation to our tribe because it is an oil
15 company.
16 Those are some of the examples that we want to
17 talk about and that actually underscores the point that
18 I will make further on.
19 If the law will designate duly-authorized
20 tribal officials to determine insignia and govern the
21 use of protected insignia for their tribal members, the
22 law will have teeth and will protect tribal interests.
23 In fact, enforcement of prohibition or
24 trademark infringement will be easier since authorized
25 users will be listed on the "Official Principal
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
37
1 Register of Tribal Insignia."
2 A mere phone call to the Tribal Chairman,
3 Governor or President will verify if the individual or
4 company is a bona fide user.
5 As to the current trademark owners of similar
6 tribal insignia, a process to determine the true owner
7 can be created or undertaken through the judicial
8 process. Either way, a cleaner list will be created of
9 the officially-designated tribal insignia.
10 The critical player in this is you gentlemen
11 and ladies - the Patent and Trademark Office. If
12 appropriate tribal consultation and input is sought at
13 the outset, there should be no insurmountable problems.
14 Listening to the frustrations of tribal
15 leaders and their practical experiences ought to define
16 for you very realistic and very feasible solutions.
17 You already have mechanisms and procedures in
18 place to effect this law. You need only to consider
19 the support and allegiance of the Department of Justice
20 and the Department of Interior to expedite the
21 registration process and enforcement of trademark
22 infringement.
23 I do not have an answer to the ramifications
24 of the U.S. obligations in the international arena, but
25 the obligations must continue because a lot of the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
38
1 enforcement infringements are taking place.
2 We also want to underscore the fact that there
3 are not enough Customs agents out there to really
4 enforce the issues.
5 On the Impact of Prohibition on Federal
6 Registration and New Uses of Official Insignia.
7 As mentioned before, by designating duly-
8 authorized tribal officials and Tribal Councils to
9 determine "official tribal insignia," they will govern
10 and license new users on behalf of their people if they
11 desire.
12 In cases of tribal seals, they already know
13 who are honest users and bona fide users, allow them to
14 continue practices that have worked.
15 Add to their competency by protecting, through
16 federal law, their cultural heritage and pride, as
17 exhibited through their insignias.
18 Current trademark owners of identical or
19 similar insignia must have some documentation to
20 justify their design creation. If not, then a
21 fundamental integrity question arises. These are best
22 addressed through the court system, preferably in
23 tribal courts or other courts of competent
24 jurisdiction.
25 Again, it is becoming more obvious that the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
39
1 Patent and Trademark Office is being defined as the
2 gatekeeper and watchdog for potential violations.
3 I believe the Patent and Trademark Office is
4 just now defining a new niche in protection of tribal
5 sovereignty and a Trust responsibility heretofore
6 unrecognizable. I believe this law has unforeseen
7 benefits for Native American tribes.
8 Administrative Feasibility.
9 As with any new law, some expenses must be
10 incurred. The lack of protection for tribal insignia
11 for years must now be borne by the federal government.
12 I believe it is not expensive relative to lost revenues
13 or costs of litigation by tribes who have suffered
14 under the absence of federal trademark protection.
15 In relation to this, the Pueblo of Zuni has
16 estimated a loss of anywhere from eighty to $60 million
17 a year from the infringement by those unscrupulous
18 companies that cheapen the craftsmenship.
19 Native American tribes already experience
20 bearing the costs of laws and subsidizing
21 administrative costs for federal programs or agencies.
22 This is nothing new to us.
23 Tribes can best lower the costs of enforcement
24 for new users who infringe on insignias or help in the
25 identification of unauthorized trademark users.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
40
1 In terms of Timing of Changes in Protection.
2 Native Americans have experienced extreme
3 losses and some minimal gains during a retrospective
4 application of exerting their aboriginal land uses in
5 the United States Land Claims Commission era.
6 The Pueblo of Zuni asserts that a prospective
7 application of the changes in the scope of the law and
8 policy will alleviate costs and allow potential
9 infringement issues to be worked out amicably - if
10 there is such a term.
11 I need to underscore this point by
12 re-emphasizing the role of tribal officials as
13 paramount and their power and authority to determine
14 tribal insignia.
15 Only by allowing tribes to be proactive
16 partners in this process will we eliminate undue costs
17 and effect a workable law.
18 In summary, I wish to reiterate key
19 recommendations for my concluding remarks.
20 First. Tribal leaders must be the sole
21 determiners of what is their tribal insignia.
22 Second. The Patent and Trademark Office must
23 proactively consult with Native American tribes to
24 create a process for submission of insignia and the
25 creation of a database. This foundation is very, very
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
41
1 critical.
2 Third. The Patent and Trademark Office must
3 reverify or update periodically the insignia list with
4 Native American tribes to ease enforcement costs and
5 support duly-designated users of tribal insignia.
6 Fourth. A new role for Trust responsibility
7 by the Patent and Trademark Office is becoming obvious;
8 therefore, other federal departments with experience in
9 Trust obligations to Native Americans must be consulted
10 to expedite a feasible implementation plan for the law.
11 The Pueblo of Zuni supports the intent and
12 offers their assistance in defining procedures to
13 assist tribes protect and exhibit their cultural
14 heritage.
15 Thank you very much.
16 MR. DICKINSON: Thank you very much,
17 Governor. Let me ask you a question.
18 GOVERNOR MALCOLM B. BOWEKATY: Yes.
19 MR. DICKINSON: You would regard this
20 [letterhead seal] as your official insignia; is that
21 correct?
22 GOVERNOR MALCOLM B. BOWEKATY: Yes.
23 MR. DICKINSON: Have you attempted or has
24 this been registered with us as a trademark, as well?
25 Because you do have an opportunity for doing that.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
42
1 GOVERNOR MALCOLM B. BOWEKATY: Well,
2 we're in the process right now, because we are
3 exploring economic development opportunities, and we
4 realize that, if not, therefore, we are looking at that
5 process currently.
6 MR. DICKINSON: Thank you. Any other
7 questions? Thank you again.
8 GOVERNOR MALCOLM B. BOWEKATY: Thank you.
9 MR. DICKINSON: Appreciate it.
10 Mr. Talache.
11 MR. TOM F. TALACHE, JR.: Yes. Good
12 morning, ladies and gentlemen. I have been asked to
13 yield a couple of minutes of my time to the children of
14 Zia.
15 Ms. Martinez, is that correct?
16 MS. GLENABAH MARTINEZ: From the tribe,
17 yes.
18 MR. TALACHE: Okay.
19 MR. DICKINSON: Sorry?
20 MR. TOM F. TALACHE: Sir, I've been asked
21 to yield a couple of minutes of my time so the children
22 can read their statements.
23 MR. DICKINSON: Do you have any sense of
24 how long it might take? - so I can kind of keep a watch
25 of the time.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
43
1 MS. MICHIKO THOMPSON: I'd say four
2 minutes.
3 MR. DICKINSON: Maybe you can speak into
4 the microphone so that we can have it for the record.
5 MS. MICHIKO THOMPSON: This is written by
6 all of us that just came up.
7 We as young adults of various sovereign
8 nations would like to express our concerns about the
9 issues surrounding the exploitation of Native American
10 symbols which embody our traditional and religious
11 values.
12 As Native people, we feel that it is important
13 to be in control of our own governments, natural
14 resources, industry, schools and so on; however, we
15 must not neglect the important aspects of our culture.
16 The symbols and images within our culture are
17 just as essential to our existence as the above-
18 mentioned; therefore, we feel that we should also be in
19 control of these symbols and what they represent so
20 that they can remain sacred to our culture.
21 With the exploitation of these symbols, their
22 meaning is depleted. This, in turn, inevitably affects
23 our self-worth and sense of dignity.
24 Native American symbols have represented ways
25 of living to various tribes for hundreds and thousands
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
44
1 of years. Recently, modern society has unfairly
2 adopted these symbols for commercial and marketing
3 motives without even a remote understanding of what
4 they stand for.
5 We as Native American youth feel that it is
6 necessary for us as sovereign nations to put a stop to
7 the misuse and degradation of our native symbols.
8 The Zia sun symbol is the backbone of the Zia
9 society and represents their perspective on life. We
10 from the various pueblos feel that the exploitation of
11 certain symbols, such as the Zia emblem, is very
12 degrading to the Zia culture.
13 We also believe that it is inappropriate to
14 misuse this symbol because it fails to reveal the true
15 sacred and religious knowledge that the emblem
16 represents. It has been taken out of its original
17 context and assimilated into the superficial world,
18 which again contributes to a loss of meaning.
19 The symbols of the Native American people
20 represent our whole way of life. These symbols have
21 many different meanings pertaining to our culture.
22 A symbol can relate stories about creations
23 and legends passed down through grandparents to
24 grandchildren throughout history.
25 The above statements are perspectives from
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
45
1 young Native American adults representing four
2 different nations: The Lakota Nation, Nee-mee-poo also
3 known as Nez Perce, San Juan Pueblo and Eastern
4 Cherokee nations.
5 We are concerned about this issue because we
6 are aware of the fact that the outcome of this trial
7 will affect all sovereign nations.
8 In our opinion, we firmly believe that the
9 Native American emblems are sacred and should not be
10 misused for purposes other than that of which they were
11 originally created for by our ancestors.
12 I am Michiko Thompson.
13 MS. ANGELA PICARD: I'm Angela Picard and
14 I'm Nez Perce.
15 MS. MORNINGSTAR GARCIA: My name's
16 MorningStar Garcia from San Juan Pueblo and Eastern
17 Cherokee.
18 MR. KEVIN PACHECO: I'm Kevin Pacheco
19 from San Juan Pueblo.
20 MR. CHUCK ARCHAMBAULT: I'm Chuck
21 Archambault. I'm from the Lakota Nation.
22 MR. DICKINSON: Thank you very much.
23 Thank you for your testimony today.
24 Mr. Talache, you now have about 10 minutes.
25 MR. TOM F. TALACHE: Oh. Okay. Thank
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
46
1 you.
2 MR. DICKINSON: Mr. Moreno is included in
3 this one on testimony so you can, each, take five
4 minutes.
5 MR. TOM F. TALACHE: Okay, sir. All
6 right.
7 Good morning, honorable ladies and gentlemen.
8 My English name is Tom Felix Talache, Jr.
9 My great grandfather, shortly after my birth,
10 gave me the name "EH-WHO-WATSEEDET-TAMBEE" which, in my
11 native Tewa language, means Cloud Bird Sunrising.
12 I was appointed this part February by my Tribal
13 Council to serve my tribal nation, Nambe Pueblo, as
14 Lieutenant Governor.
15 Nambe has a very long history. Our nation is
16 almost 700 years old. Recorded history, of course. We
17 have a much lengthier history which predates the 1300s.
18 I have been asked by the Executive Director of
19 the Eight Northern Indian Pueblos Council, Mr. Bernie
20 Teba, to offer some comments on the issues surrounding
21 tribal insignia, trademarks, et cetera.
22 Eight Northern Indian Pueblos Council is a
23 non-profit organization that serves the eight Indian
24 Pueblos located north of Santa Fe.
25 Please note the following disclaimer: My
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
47
1 comments today do not represent specific concerns or
2 formal positions of any one particular tribal nation or
3 nations that are amongst the Eight Northern Pueblos;
4 however, I have been asked to speak in general terms on
5 the matter and encourage this process.
6 This is a very new issue that I have very
7 recently been asked to look at and provide comment for,
8 so I am not certain what all the concerns are relating
9 to this obviously very important issue.
10 The New Mexico State Office of Indian Affairs
11 encouraged me to review a related Public Law as a basis
12 in preparing my testimony on this issue, and that was
13 Pueblo Law 101-644. [The Indian Arts and Crafts Act of
14 1990]
15 This law goes on to state that it is unlawful
16 to offer or display for sale, or sell any good, with or
17 without a government trademark in a manner that falsely
18 suggests it is Indian-produced, an Indian product, or
19 the product of a particular Indian or Indian Tribe or
20 Indian arts and crafts organization resident within the
21 United States.
22 Though this law is specific to the protection
23 of Indian arts and crafts, this law not only addresses
24 and protects an important issue, I believe it provides
25 an appropriate model in which there can be additional
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
48
1 regulation to include protection of Native American
2 Indian trademarks, logos, insignias, symbols and so on,
3 whether they come from governmental or private Native
4 American Indian citizens.
5 My recommendation would be that any regulation
6 developed should include some of the oversight and
7 protection provisions as outlined in Public Law 101-644
8 and that it should also include protection for entities
9 found both on and off tribal lands.
10 I say "off tribal lands" as well, because
11 protection should be extended to Native people as they
12 have, in most instances, dual citizenship.
13 Not only are they citizens of the United
14 States of America, additionally they are citizens of
15 their respective tribal nations, as well.
16 We are thankful that this issue is being
17 discussed formally, that the same consideration that is
18 extended to other nations outside the United States is
19 being extended to our respective Indian Nations found
20 within the borders of this country.
21 We are hopeful that the trademarks that are
22 produced by our Native American Indian entities and
23 individuals will be given equal protection as those of
24 other nations.
25 For example, we see that various corporations
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
49
1 from nations throughout the world promote their
2 products, goods and services in this country.
3 Their individual logos, symbols, trademarks
4 and designs are displayed, such as Mercedes Benz, BMW
5 and on and on, and no American entity will utilize it,
6 for certainty of penalty.
7 Additionally, we welcome continued dialogue to
8 further protect the interests and creativity of the
9 tribal nations and the American Indian peoples of this
10 country because, for many, the logos and such that they
11 design are a product of prayers, visions, legends, oral
12 tales, an innovative thought that is unique to an
13 individual person or is a culmination of ideas shared
14 by more than one person, something that has been shared
15 that collectively has been incorporated into a design
16 of something that represents a connection to that
17 collective synergy, or connection to something that has
18 historic or cultural significance and becomes a
19 permanent unchanging design.
20 The logo produced for the Eight Northern
21 Indian Pueblos Council is a perfect example. This is
22 their logo [indicates document].
23 This organization was formed over 25 years ago
24 and the logo that was designed has gone unchanged and
25 will remain unchanged for as long as the organization
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
50
1 exists.
2 It is imperative that these very positive
3 discussions continue between tribal governments and the
4 United States Government.
5 Furthermore, we are thankful that the current
6 leadership of the United States Government is
7 approaching this issue with respect for our concerns as
8 is evident by the dialogue that we have today. This
9 will certainly prove to begin to develop positive
10 solutions for this issue.
11 I would like to extend my personal
12 appreciation to President Clinton for signing Public
13 Law 105-330, Title III, which continues to set a
14 positive precedence in dealing with this issue that is
15 an important and worthwhile one for our tribal nations.
16 Lastly, I would like to thank this panel for
17 your personal time and commitment to this issue and for
18 allowing our input into these discussions.
19 With that, I ask that the remainder of my time
20 be given to Mr. Fidel Moreno who serves the Indian
21 community as the President of the American Indian
22 Chamber of Commerce of New Mexico.
23 Thank you.
24 MR. DICKINSON: Thank you very much, Mr.
25 Talache. Mr. Moreno.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
51
1 MR. FIDEL MORENO: I'd like to say Good
2 Morning to the pueblo relatives and friends that are
3 here and especially to the Zia community elders and
4 young people that spoke this morning.
5 I'd like to also say Good Morning to you and
6 Thank you for traveling here and doing all the work
7 you're doing.
8 On behalf of the American Indian Chamber of
9 Commerce of New Mexico, I'd just like to express that
10 we have some very strong concerns but also support the
11 dialogue that's going on here today and, as you will
12 hear for the rest of the day, there are some deep
13 concerns about the marketability for use of American
14 Indian themes, images, symbols.
15 And just to give you some concrete, quick
16 examples, you know, in the auto industry, the use of
17 the Winnebago, the use of the Cherokee Jeep, the use of
18 the Navajo truck.
19 You know, if people would really understand
20 that those are all names that were given to these
21 Native people by either their enemies or Europeans and
22 don't really reflect how they identify themselves, on
23 one hand we're promoting a lot of ignorance by allowing
24 that kind of marketing and PR to go on in the industry.
25 But nonetheless it happens because we don't
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
52
1 have laws that protect the cultural, intellectual,
2 historical properties of Indian people and I think this
3 is a good step in creating a dialogue so that people
4 just can't come and take what is very dear and sacred
5 to us.
6 My profession is, I'm a film maker. I've been
7 doing documentaries for the last 17 years, since 1982,
8 and I've worked with people like Robert Redford, Kevin
9 Costner and, in that time, I've also worked on and done
10 a lot of documentaries for Indian tribes.
11 And I just wanted to express that in working
12 with over 75 tribes in documenting their oral
13 histories, there was a lot of protocol and ceremony
14 involved in hearing their stories and working through a
15 lot of very sensitive issues about what they wanted to
16 go out to the public and what they wanted to keep in
17 their communities.
18 So a lot of times, people do not understand
19 that, who were not brought up in a Native American
20 culture, a Native American society; and I think that
21 it's a good step to bring about this kind of dialogue
22 so you can hear the kind of respect that exists, deep
23 respect for the oral histories.
24 As you know, a lot of our cultures are built
25 on millennia, old traditions of oral histories where we
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
53
1 have very specific information about land, about
2 natural resources, about relationships, relationships
3 with each other, relationships with The Creator, and
4 those are all very sacred.
5 To give you an example of that, I worked on
6 the NAGPRA issue and one of the problems that many
7 tribes have is that one of the requirements in the
8 NAGPRA issue - The Native American Grave Protection and
9 Repatriation Act - is that the only people that can
10 talk or discuss some of the critical issues that define
11 what is sacred are the spiritual leaders of those
12 communities and only within the context of ceremony and
13 not putting it in writing and not putting it out for
14 public awareness.
15 So one of things that I'd just like to share
16 with you is that you may come across some of that,
17 those same circumstances in this.
18 But I think that as you have seen in the
19 American Indian Religious Freedom Act, the NAGPRA and,
20 now, this amendment that you're going to do, the tribal
21 leaders, Chairmen, Governors are willing to work with
22 you, are willing to work with you in a very positive
23 and proactive dialogue to come to some understanding on
24 how to address this issue.
25 So I just wanted to say that on behalf of the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
54
1 American Indian Chamber of Commerce, that we would also
2 like to work with the Governors and also the committee
3 on this important issue.
4 I want to say Thank You again. Good Morning.
5 MR. DICKINSON: Appreciate it very much.
6 Thank you.
7 (Applause)
8 MR. DICKINSON: I'd like to get a little
9 more in depth with some of the legal issues as well.
10 Could I invite --
11 Well, next on our list is Mr. Polese from the
12 New Mexico Book Association, so I'd like to invite him
13 up, as well.
14 Also, would Ms. Boulware from the AIPLA be
15 prepared to testify morning?
16 And also Governor Shije mentioned that some of
17 his attorneys were present here today. Is that Ms.
18 Price here? Mr. Mielke? Is that right?
19 MS. ROBERTA PRICE: Yes.
20 MR. DAVID MIELKE: Yes.
21 MR. DICKINSON: Would you mind both
22 coming up to the counter, as well? I know you were
23 scheduled for a little later on this afternoon but I
24 wanted to talk a little bit more about some of the
25 specifics.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
55
1 Why don't we start with Mr. Polese. Mr.
2 Polese, you have about 15 minutes.
3 MR. RICHARD POLESE: Thank you.
4 I'm President of the New Mexico Book
5 Association, which is non-profit. It serves most
6 professionals throughout the state.
7 But the reason why I'm here is because of my
8 research into what we now know as the Zia sun symbol,
9 specifically. I worked for the Museum of New Mexico
10 for eight years and did most of this work back in the
11 late 1960s.
12 Everyone in New Mexico embraces it, but not
13 many people are aware just where the popular so-called
14 New Mexico Zia sun symbol comes from.
15 I researched the origins of this design while
16 employed by the Museum of New Mexico. My findings were
17 published in El Palacio, the Museum's journal, in 1968;
18 and in the years since, I've collected hundreds and
19 hundreds of examples of variations of this wonderful
20 design.
21 The Zia sun symbol, as we have come to know
22 and love it, was designed by Dr. Harry P. Mera in 1925
23 as part of a contest for a new state flag.
24 Dr. Mera, a Santa Fe physician and
25 archeologist, was inspired by a sun depiction on a Zia
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
56
1 Pueblo pot in the Indian Arts Fund collection of the
2 Laboratory of Anthropology.
3 And this is what -- Can you see this up here,
4 this graphic I hold?
5 His simple and elegant design was accepted by
6 the Daughters of the American Revolution and as the
7 design and -- Just a moment here.
8 This pot itself was probably made a little
9 before the turn of the last century but probably in the
10 19th Century, and the Mera design, however, is not a
11 copy of that design and as some people apparently still
12 believe.
13 Anyway, here's the background on how it came
14 to be.
15 The women in the New Mexico Daughters of the
16 American Revolution held a contest starting in about
17 1920 for a new state flag. And the old flag was really
18 pretty dreadful. It had New Mexico kind of going
19 diagonally like this, and it had the American flag
20 here, and it was absolutely not very good.
21 Not satisfied with the entries they received
22 for the new flag, they turned to Dr. Mera; and his
23 simple and elegant design was accepted and his wife
24 Reba sewed the first flag.
25 It was inspired by Pueblo art, crafted in its
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
57
1 final form by an Anglo, and displayed in the red-and-
2 yellow Spanish royal colors. The flag was an instant
3 hit and a source of great pride for all New Mexicans
4 because it so closely and eloquently reflected the
5 essence of the whole state.
6 The sun insignia, as it appeared first on the
7 flag, is a simple circle with four groups of four rays.
8 The sun on the Zia Pueblo pot is suggestive but
9 markedly different in several respects.
10 The Zia pot's suns, and there's one on each
11 side of the pot, it's about 10-and-a-half inches in
12 diameter, depict a face inside two circles. Its twelve
13 stubby rays number three in each group, the middle one
14 of which being much thicker than the two that flank it.
15 The face is surrounded by a ring of lines, resembling
16 hair. It is a stunning and beautiful design but it is
17 not the official New Mexico sun symbol.
18 This is a photocopy of a photocopy. I don't
19 know how well it shows up here but it's a little closer
20 view of one of the two suns on that Zia Pueblo pot.
21 Some years ago, a flyer about the state's sun
22 sign was made available to visitors at the State
23 Capitol in Santa Fe. This imaginative piece ascribed
24 mystical meanings to the four groups of four rays.
25 However, these attributes don't predate Dr.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
58
1 Mera's design due to the fact that the sun symbol on
2 the flag had 16 rays only when they were drawn on there
3 by Dr. Mera. There are just 12 rays on the Zia Pueblo
4 pot design.
5 And, of course, there are other sun symbols
6 from that region that have varying numbers of rays.
7 They usually go in four directions.
8 The flyer and the wording of the state statute
9 establishing the new flag may have been responsible for
10 misunderstandings about the famous symbol.
11 The 1925 Legislative Act describing the flag -
12 And the reference to that is Number 4-14-2 - refers to
13 the Mera insignia as the "ancient Zia sun symbol."
14 This wording was likely added to honor our Indian
15 cultures as well as lend a little drama and romance
16 which was very typical of that era.
17 However, the design described by the law is
18 exactly that of the one on the flag designed by Dr.
19 Mera and sewn by his wife.
20 Moreover, no evidence is given that would
21 support such a claim of antiguity. A close look at the
22 historical and archeological record shows no examples
23 of the simple four groups of four rays with an
24 unadorned circle "sun" design in the vicinity of Zia
25 Pueblo, at least not before 1925.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
59
1 To be certain, there are celestial depictions
2 of the sun, stars, and the planet Venus in the
3 post-1300 rock art of the Keres-speaking region,
4 depictions similar to those found in other areas of the
5 Southwest.
6 According to Polly Schaafsma, a respected
7 scholar in the field of Southwestern rock art, most
8 examples of the sun and of Venus have a face in the
9 center. Sometimes, there are rays all around the
10 circle, usually short. Most often, there are four
11 rays, sometimes eight.
12 Many "sun shield" depictions have multiple
13 "rays," often like little triangles around a circle.
14 And I'll show you a couple of these examples of those.
15 Ms. Schaafsma is not aware of any examples
16 from this area that have four groups of four rays
17 within a circle without a face.
18 And the reference to that is her book "Rock
19 Art of New Mexico" revised 1992, and "Rock Art of the
20 Cochiti Dam Project" papers in Anthropology Number 16.
21 Suns with rays appear in various cultures all
22 over the world. And a few I have seen are actually
23 closer to Dr. Mera's design than the one on the
24 particular Zia Pueblo pot.
25 Nevertheless, that's where Dr. Mera found his
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
60
1 inspiration and he was careful to make the final
2 design, one that would be universally embraced by
3 everybody in New Mexico.
4 It seems quite clear that this sun symbol, by
5 whatever name it may be called, belongs to all the
6 people of the state, not merely a single tribal or
7 commercial organization.
8 The official salute to the state flag is:
9 "I salute the flag of the State of New
10 Mexico, the Zia symbol of perfect
11 friendship among united cultures."
12 Now, if not all of us have attained that high
13 ideal, it is certainly something for us to aim for, for
14 every person who would call himself or herself a New
15 Mexican.
16 Here is -- I have copies of my remarks in my
17 original article that I did for El Palacio on the table
18 back there and also there's other information from the
19 state statute.
20 I'll entertain some questions. Is that it?
21 MR. DICKINSON: Any questions?
22 MR. POLESE: No?
23 MR. DICKINSON: Okay. Thanks very much.
24 We appreciate it.
25 MR. POLESE: I just wanted to show these.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
61
1 These are a few of the rock art depictions here in New
2 Mexico, what are either used or considered the sun or
3 perhaps Venus, or, considered suns of Venus.
4 This one up here is post-1300. I don't know
5 where it came from. But it's one that's in one of our
6 chapters.
7 But this one is from Black Mesa, in the Tewa
8 area up here, the San Ildefonso Pueblo.
9 And these two here are from the Cochiti Dam
10 area, which is the Keres-speaking area, which would
11 include Zia Pueblo.
12 Thank you.
13 MR. DICKINSON: Thank you.
14 We'll hear now from -- And I appreciate your
15 allowing us to take a slightly different order from the
16 original.
17 We're pleased to have a friend of the PTO
18 here, Meg Boulware, who's the President of the American
19 Intellectual Property Law Association and at least a
20 part-time New Mexico resident.
21 Pleased to see you here today, Meg.
22 MS. MARGARET A. BOULWARE: Thank you.
23 Thank you very much, Commissioner Dickinson.
24 I don't know if Senator Bingaman is still here
25 but I'd like to urge for your confirmation as
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
62
1 Commissioner at this time.
2 I'd also like to thank Commissioner Dickinson,
3 Eleanor Meltzer and others from the PTO and commend
4 them for having hearings on this very important issue
5 in Albuquerque, New Mexico.
6 I'm President of the American Intellectual
7 Property Law Association which is a national
8 association, that its primary objective is enforcing
9 intellectual property rights for all people in this
10 country and we have very strong appreciation for the
11 rights of creators and authors.
12 I'd also like to address the trademark issues
13 that are brought up at this hearing.
14 There are many other issues that are being
15 discussed including tribal religious issues, and I'm
16 certainly not qualified to speak on those issues, but I
17 would like to thank the Commissioner and the PTO for
18 being included with these distinguished panel speakers
19 and the others who have spoken before me.
20 I am a part-time resident of the State of New
21 Mexico and one of the great attributes of this state is
22 the cultural diversity and the recognition of heritage
23 in this state that I think we all want to share and
24 want to promote in the future.
25 Part of the American Intellectual Property Law
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
63
1 Association, the AIPLA's request to the PTO was to have
2 hearings so that those of us who may not be as educated
3 on these issues could have an opportunity to be
4 educated and we requested having hearings outside
5 Washington, D.C. and we were very glad that our
6 recommendations were undertaken.
7 One of the reasons we requested these hearings
8 was that the AIPLA wanted to hear from those involved,
9 what they considered their official insignia, so that
10 there could be an understanding of the official
11 insignia.
12 One of the comments I'm going to make today
13 that's not in my prepared testimony is that I think
14 I've already been educated on that fact. I've heard
15 quite a bit of it, starting with Senator Bingaman,
16 concerning the fact that most of our Native American
17 tribes and pueblos do have recognizable insignia for
18 their use, for their official use.
19 And we have encouraged the PTO working with
20 any other government agencies, that they feel would be
21 appropriate, to attempt to collect those official
22 insignia that are used.
23 In our comments, we noted that official
24 insignia of states and other countries are generally
25 self-limiting. They're the insignia that are used on
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
64
1 official seals, official correspondence.
2 And from our discussions this morning, it is
3 apparent to me that, at least to a large degree, there
4 is similar usage here in New Mexico and perhaps
5 elsewhere in the country and we believe that collecting
6 and identifying the official insignia will go a long
7 way to having appropriate protection for those official
8 insignia in the same way that official insignia of
9 other states and governmental entities are recognized
10 by the Patent and Trademark Office.
11 One issue that was brought up that I do not
12 think, as a trademark attorney, should be
13 problematical, that any Native American registrations
14 that have already been received should not be affected
15 by a proposal to protect the Native American tribal
16 insignia.
17 Those trademarks that were validly procured
18 should certainly maintain their integrity and I can't
19 imagine that there would be an issue with going forward
20 with that.
21 Another issue that has come up that I believe
22 is separate and apart from the Native American insignia
23 protection is product authenticity.
24 I found it quite frankly disturbing that - And
25 I had read this before - that there was a city in the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
65
1 Philippines that had incorporated under the Zuni name.
2 I had read about that, living here in New
3 Mexico, and the comments I'd like to provide on that
4 is: The U.S. trademark laws, as they stand, does have
5 a remedy for product authenticity. Counterfeit goods
6 are a problem for many reputable, high-quality product
7 sources. And, unfortunately, the Native American
8 community appears to be the victim of counterfeit goods
9 or unauthentic goods. But we do have the current
10 trademark laws that do try to protect against that.
11 Of course, it's up to the trademark owner to
12 enforce their remedies in federal courts; but I have
13 found the federal courts to be sympathetic to
14 legitimate trademark owners when there is a passing off
15 of counterfeit goods and I understand that that's an
16 issue.
17 Also, in some of the discussion, there has
18 been another type of passing off and that would be
19 products that are geographically misdescriptive - Like
20 I know where Pojoaque is - and a Pojoaque product that
21 came from New Jersey would be a geographically
22 misdescriptive designation. And our Lanham Act, our
23 Trademark Act, does provide that marks that are
24 geographically misdescriptive cannot be registered and
25 if the marks are registered for any reason, they can be
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
66
1 subject to cancellation.
2 A number of the issues that are brought up
3 today are issues that, quite frankly, my association is
4 very interested in - very interested in, period -
5 regardless of where the transgressions come from and we
6 would certainly support very strong trademark rights
7 for any American citizens.
8 The issue of the tribal insignia I think is
9 one that certainly can be dealt with, with perhaps a
10 minor change in the Lanham Act, to recognize that there
11 are Native American governments that do have official
12 insignia and, from the testimony today, if it's
13 consistent throughout the country and there's
14 identifiable insignia, we believe that they can be
15 collected.
16 I also agree with one of the earlier panelists
17 that it would be very good, once a collection is made,
18 to have it available in the digital world.
19 We can have it on-line so anybody who wants to
20 check what insignia is protectable, the Patent and
21 Trademark Office has a very good website with a
22 searchable database and we would encourage that a list
23 be circulated in digital form so that it could be
24 received by those on the internet.
25 At the same time, the AIPLA urges that the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
67
1 Native American tribal insignia should not receive
2 certainly no less but no more protection than the other
3 insignia that other states and nations and
4 municipalities currently enjoy.
5 As far as changes to the Lanham Act or changes
6 to our Trademark Act, the AIPLA's position is that
7 certainly today is the first day of the fact-finding
8 and we would encourage the PTO to continue to gather
9 information and determine what changes need to be made.
10 We're not suggesting any changes at this time
11 because, quite frankly, we hadn't had the benefit of
12 the hearings and we think that any changes should be
13 suggested after the benefit of these hearings and
14 consistent with - however consistent with the AIPLA's
15 position - that Native American insignia certainly are
16 entitled to protection.
17 One of the things I want to also emphasize; as
18 you, the PTO officials know, is that the PTO is a
19 government agency that's responsible for federal
20 registrations. It does not monitor infringing use.
21 However, the PTO does protect against registrations of
22 trademarks that are in conflict with the federal law.
23 And, also, if a registration is issued, then
24 the PTO also has cancellation proceedings whereby an
25 injured party can come to the PTO and cancel a
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
68
1 registration.
2 And I think we need to understand that if the
3 PTO does has a registry for Native American insignia,
4 it will review applications that are filed and
5 determine if those applications conflict with the
6 insignia.
7 The issue of use would have to be dealt with
8 by parties in federal litigation because the PTO at
9 least at this time is not authorized to issue
10 injunctions across the country for infringement issues
11 but those certainly are handled in our federal courts.