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NATIVE AMERICAN ARTS, INC. v. CHICO ARTS

June 4, 1998

NATIVE AMERICAN ARTS, INC., Plaintiff,
v.
CHICO ARTS, INC., a Texas corporation, Defendant.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 BUCKLO, District Judge.

 The plaintiff, Native American Arts, Inc. ("NAA"), filed suit against the defendant, Chico Arts, Inc. ("Chico Arts"), for selling certain products. Count I alleges violation of the Indian Arts and Crafts Act of 1990 ("IACA"), 25 U.S.C. § 305 et seq. Count II alleges violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/2. Count III alleges violation of the Illinois Uniform Deceptive Trade Practices Act ("DTPA"), 815 ILCS 510/2. Chico Arts moves to dismiss all counts of the complaint. For the reasons set forth below, Chico Arts' motion is granted inpart and denied inpart.

 Background

 The NAA alleges that Chico Arts has offered, advertised, marketed, displayed, or sold various products in a manner that suggests they were Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization when in fact, they were not. These products are traditional Indian artworks and crafts, such as tomahawks and peace pipes, embodying traditional Indian styles, motifs, and designs, and are traditionally made by Native Americans.

 Chico Arts allegedly prints catalogs, posters, brochures, flyers, order and invoice forms, advertising and marketing materials, and literature using the terms "Indian," "Native American," and tribes, and falsely stating that the products are "handcrafted by Native American Indians." It places tags on some of the products depicting a Native American woman handcrafting an Indian product and with the phrase "Native Americans" and identifying certain North American tribes. Other tags have the term "Indian," "Native American," or tribes on them. Furthermore, Chico Arts' salespersons falsely state that the products are authentic Native American or Indian produced products or Indian products. Most of the products sold either do not have any disclaimers on them or the disclaimers are inadequate.

 Count I

 25 U.S.C. § 305e(a) states that:

 
[a] person specified in subsection (c) of this section may, in a civil action in a court of competent jurisdiction, bring an action against a person who offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States . . . .

 25 U.S.C. § 305e(c) specifies that:

 
(1) A civil action under subsection (a) of this section may be commenced--
 
(A) by the Attorney General of the United States upon request of the Secretary of the Interior on behalf of an Indian who is a member of an Indian tribe or on behalf of an Indian tribe or Indian arts and crafts organization; or
 
(B) by an Indian tribe on behalf of itself, an Indian who is a member of the tribe, or on behalf of an Indian arts and crafts organization.

 The plain language of § 305e(c) clearly authorizes only two parties to bring a suit: the Attorney General or an Indian tribe. The NAA is not an Indian tribe but an Indian arts and crafts organization. Thus, it ...


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