Indigenous Producers Face Trademark Battle Over Company Names Causing ‘Public Confusion’ (EXCLUSIVE)
A trademark battle is brewing between two Indigenous North American producers over the use of an Indigenous descriptor in their respective company names.
The bubbling dispute between Frisco, Texas-headquartered IndigiStudios — founded by actor Gary “Litefoot” Davis, known for his role as Little Bear in the 1995 film “The Indian in the Cupboard” — and Kelvin Redvers’ Vancouver-based IndigiFilm Media raises questions about the use and protection of cultural identity-based descriptors in corporate names.
Canadian producer Redvers, a member of the Dene nation, set up film and TV production company IndigiFilm in June, with an eye on developing and producing scripted and unscripted projects in Canada and overseas.
Redvers received a notice of trademark infringement from Davis’ IndigiStudios in August 2022, detailing that the American company — which filed a U.S. trademark application in August 2021 — claims “exclusive right” to use the name for “entertainment services in the nature of development, creation, production, distribution, and post-production of television programming, including internet streaming, TV series, movies, multimedia content and similar projects.”
The letter, which has been seen by Variety, claims that Redvers’ “unauthorized use” of the name IndigiFilm “is likely to cause, and may have already caused, public confusion or mistake” around its potential association with IndigiStudios. The order requests the immediate “cease and desist” of the company name.
In January 2023, the U.S. Trademark and Patent Office published its intent to approve the IndigiStudios trademark for publication, which if successful will require Davis to protect the name — potentially with legal action — in order for it to remain active. That would likely require going to federal court and obtaining injunctions against companies that infringe upon the trademark.
Variety understands that Redvers is set to file a formal Notice of Opposition in the coming week in order to delay the trademark’s approval. The producer argues that the descriptive prefix of “Indigi-” should be accessible to everyone in Indigenous business communities.
“It’s such a scary notion that someone is trying to exclusively ‘own’ an identity — an identity that’s used by millions of people around the globe,” Redvers tells Variety.
“It’s an identity that we’re willing to fight to protect for all Indigenous folks, not just for us. We would never stop him or any other company that used ‘Indigi-‘ in a clever way from branding themselves as Indigenous, provided they respect ‘IndigiFilm’ specifically. The more ‘Indigi-‘ companies there are, the better. Indigenous [people] need every opportunity we can get in media right now.”
Davis, however, denies having any issue with Indigenous communities using the “Indigi-” prefix in their corporate names.
“That’s simply not the case,” he tells Variety via email. “I have spent my entire professional career promoting economic development by and for Indigenous people. I would be the last person to keep any Indigenous person from their entrepreneurial pursuits.”
Davis, who is of the Cherokee nation, notes that the protected trademark class sought by IndigiStudios only applies to film and TV production. “I have absolutely no issue at all with anyone who wants to use ‘Indigi-’ as part of a product offering, so long as they do not create confusion with our IndigiStudios brand.”
He warns that “appropriate action must be taken by us to protect our brand,” and says IndigiStudios will “remain diligent and steadfast in rigorously protecting our intellectual property.”
Jordan Lavine, a Philadelphia-based intellectual property attorney with Flaster/Greenberg, notes that even though the U.S. Trademark and Patent Office has approved the mark for publication, it doesn’t oversee its enforcement.
“It is very challenging to claim exclusive rights in a descriptive term or abbreviation,” explains Lavine. The attorney gives the example of trademarks that begin with “enviro-.”
“There are innumerable products that exist that have trademarks that begin with the word ‘enviro-’ to suggest that they are environmentally conscious. And for that reason, no single trademark owner can really have exclusive rights in that prefix,” says Lavine. “I view this as being very similar. If Indigenous filmmakers are behind the productions put out by these companies, then it certainly has descriptive connotations.”
The “Indigi-” prefix is common in a number of media brands, including Canada’s IndigiDocs program through the National Screen Institute, the IndigiCon conference in Australia, and the PBS series “Indigi-Genius.”
Academic and activist Lee Francis, who is based in New Mexico, has even styled himself online as the “Indigenerd.” He explains that the conflict between IndigiStudios and IndigiFilm has troubling implications for the wider community, and puts “groups at odds that don’t need to be at odds.”
“A trademark is a colonial mechanism that allows for an ownership over a particular concept. And it seems to me that it strikes very much like the idea of ownership over land,” says Francis.
“We talk about this a lot in the native histories…The ownership concept is a western concept and IP follows down that same line. That’s where it tends to put us all against each other.”
(Pictured, L-R: Kelvin Redvers, Gary “Litefoot” Davis)
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