On March 17, 1992, Hornell Brewing Company introduced The
Original Crazy Horse Malt Liquor to the American market. Ferolito,
Vultaggio & Sons, distributed the beverage across the
country. Their business was primarily focused on creating
images and promotion campaigns for the beverage industry.
The business added images and symbolisms to goods that had
no market recognition, with the hope that the newly created
image would draw the attention of consumers. In this case,
the good was malt liquor, which Ferolito, Vultaggio &
Sons targeted the selling of to "African American and
Hispanic men (groups that purchase most of the malt liquor
consumed in the United States)" (Coome 200). The company
targeted this market by using designs, images, and phrases
thought to be important to these minorities: power and victory.
Crazy Horse was a famous leader of the Lakota tribe, known
for being a spiritual warrior and defender of the Lakota Sioux
people. Seth H. Big Crow, a descendant of Crazy Horse chosen
by the Lakota people to break the traditional silence and
represent Crazy Horse in public courts, stated that "He
[Crazy Horse] gave his life protecting the Lakota people and
culture from the greed of the land grabbers, gold seekers
and liquor dealers over a century ago".
The Oglala people of Pine Ridge (also descendents of Crazy
Horse) were the first to ask the brewers to voluntarily withdraw
the label. When the brewers refused, Congress took action.
In October 1992, President George Bush signed a law banning
the national sale of any alcohol bearing the Crazy Horse label.
Hornell went to court, citing infringement against its right
to commercial free speech. In April of 1993, a New York federal
court overturned the national ban on first amendment grounds.
However, there are limitations on the first amendment rights
of companies selling products. These limitations include:
False advertising is prohibited
Obscene language is prohibited in commercials.
Cigarettes and liquor can not be advertised on television.
Trademark law prohibits one company from using a name
or logos, etc. that belong to another company.
In this case, Seth H. Big Crow and the Rosebud Sioux Tribe
filed suit against the brewers for appropriation of the name
without permission. The complaint filed by the Estate of Crazy
Horse alleges causes of action under federal, state and Lakota
Disparagement and defamation of spirit under Lakota law
Misappropriation and misuse of property rights
Privacy violations, including violation of the right
Negligent infliction of emotional distress
Intentional infliction of emotional distress
Claims arising under the Indian Arts and Crafts Act (which
prohibits false suggestions that a product is Indian produced-an
Indian product, of Indian origin, or the product of a
particular Indian or Indian Tribe)
False designation of origin and false endorsement
One of the most important legal issues of the case is the
right of publicity, a type of property right. They are usually
considered intellectual property, in that they are rights
to a property that is not physical or touchable, or expressed
ideas or thought processes (often protected through patents).
Intellectual property right includes protection of one's sentimental
possessions or any other piece of physical property that can
be inherited and passed down from generation to generation.
Ferolito & Vultaggio contested the fact that they had
"merely taken something from the public domain and turned
it into something of value; whatever symbolic value the name
had was due to their own authorship of the trademark"
(Coome 201). However, no one can use the name of a living
person without his or her permission. Crazy Horse died 125
years ago, and thus at issue is who owns the right to the
name and how long after his death is the right preserved.
In this case, the right to control and protect Crazy Horse's
is an intangible, intellectual property right held by his
family for at least seven generations. Local jurisdiction
determines how long after death the right survives. Here,
Lakota Customary Law provides that the right of publicity
survives seven generations after the person's death. Thus,
this right in the Crazy Horse's name is an indigenous intellectual
property right that belongs to the tribes and family of Crazy
Horse, not to Hornell Brewing Company. As such, the United
States Patent and Trademark Office examiner refused to register
Ferolito & Vultaggio's mark, because it violated a section
of the Federal Trademark Act that "bars the registration
of marks deemed 'immoral . . . or scandalous matter; or matter
which may disparage . . . persons, living or dead, institutions,
beliefs, or national symbols, or bring them into contempt
or dispute'" (Coome, reference #178, 202).
Seeing as Seth H. Big Crow represented The Estate of Tasunke
Witko (Crazy Horse), a major problem arose in the tribal courts
that prevented the case from immediately going to the federal
court system. The Rosebud Sioux Tribal court stated that the
Estate had no legal rights because it did not have standing
to sue Hornell Brewing Company. Under the Indian Arts and
Crafts Act, only the U.S. Attorney General or a federally-recognized
Indian tribe would have such standing. To circumvent this
problem, the Rosebud Sioux Tribe (a federally recognized Indian
tribe) joined with Seth H. Big Crow, to retain the intellectual
property rights of the Crazy Horse estate.
In 1992, G. Heileman Co, Inc., was the bottler for Hornell
Brewing Company and was originally one of the defendants in
the Estate's lawsuit. However, G. Heileman Co, Inc., filed
for bankruptcy relief in 1996 and was taken over by Strohs
Brewing Company. As a result of their purchase of G. Heileman
Co. Inc., Strohs assumed all legal responsibilities therein,
which automatically made them a defendant in the lawsuit brought
upon by the Rosebud Sioux Tribe. The two parties fought fervently
for ownership of the Crazy Horse name; the Tribe's fight being
for the misuse and commercialization of a heroic icon who
denounced the use of alcohol, and the brewing company's fight
for the first amendment freedom to use figures in the public
domain as advertising tools.
On April 25, 2001, after negotiation between Strohs Brewing
Company and the Estate of Crazy Horse and the Rosebud Sioux
Tribe, they settled. The agreement included:
A public apology for misusing the name Crazy Horse
Assignment to the Estate of all intellectual property
rights in the name of Crazy Horse, including outstanding
applications with the Patent and Trademark Office
Cooperation in developing documents in SBC Holdings'
Destruction of all packages and packaging materials related
to Crazy Horse Malt Liquor
Agreement to never use the name Crazy Horse in any commercial
In addition, Strohs agreed to present the Estate and Rosebud
Sioux Tribe with 32 Pendelton blankets, 32 braids of sweet
grass, and 32 twists of tobacco (one for each of the 32 states
in which the malt liquor is distributed). Strohs also presented
the Estate and the Rosebud Sioux Tribe with seven thoroughbred
race horses (one for each of the seven bottling facilities).
"The image of these two Italian American entrepreneurs
leading horses across the plains to show homage due to an
Indian ancestral spirit is certainly more striking than the
accompanying claim for punitive damages" (Coome 204).
On April 26, 2001, John Stroh III (president of the company)
and his attorney came to Rosebud for a ceremony and personally
apologized to the tribes and relatives of Crazy Horse for
the offensive conduct of the G. Heileman Brewing Company.
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