By Aman K. Gebru.
The Article introduces a quadrant of cultural appropriation keyed to two factors—the cultural symbol’s level of diffusion and the degree of its commercial use (diffused/non‑commercial; distinct/non‑commercial; diffused/commercial; distinct/commercial) and concluding that legal remedies are largely unworkable in the first three because of free‑speech and standing concerns. Focusing on the distinct‑commercial quadrant, the Article develops a new cause of action—“cultural passing off”—for commercial use of a distinct cultural signifier that falsely suggests affiliation with an identifiable source community, and requires claimants to show collective goodwill, commercial misappropriation of a distinct symbol, and deprivation of material advantage. Designed to remediate harmful cultural appropriation while preserving beneficial cultural diffusion and fundamental expressive rights, the framework is explored through case studies (Jeep’s use of “Cherokee”; Gucci’s use of Sikh turbans) to illustrate its strengths, limits, and potential to fill gaps left by existing law.