Halloween is big business. Each year, retailers market thousands of costumes inspired by popular culture, historical figures and cultural traditions. While many costumes generate little controversy, others spark debate when they use imagery, clothing, symbols or customs associated with particular communities. At that point, what begins as seasonal commerce can raise broader questions about cultural appropriation, ownership and legal protection.
The issue is not limited to Halloween, of course, but Halloween costumes provide a particularly illustrative example of how cultural expressions can be transformed into commercial products, raising questions not only about cultural sensitivity but also about legal ownership and protection. What happens when imagery, clothing, symbols or traditions associated with a particular community enter the marketplace? And what role, if any, can trademark law play?
From Culture to Commerce
Legal scholars have defined cultural appropriation as taking another culture’s “intellectual property, traditional knowledge, cultural expressions or artifacts” without permission.[1] Embedded in that definition is a question familiar to intellectual property attorneys: Who, if anyone, has rights in the expression being used?
In the context of culture, that question becomes complicated. Cultural imagery, clothing, symbols and traditions often develop collectively over generations rather than originating with a single creator or an identifiable rights holder. That communal nature raises a difficult question of what it means for a cultural product to “belong,” in a legal sense, to a community, particularly when the community itself may be diffuse or its boundaries difficult to define. It also exposes a fundamental tension between cultural products and traditional intellectual property frameworks, which are not always well suited to recognizing or protecting collectively developed cultural expressions. Trademark law provides a particularly interesting example of that tension.
The Intersection of Trademark Law and Cultural Appropriation
Trademark law is designed to protect words, names, designs and other symbols when they function to identify the source of goods or services. Cultural significance, however, is not the same thing as trademark significance. A name, pattern, symbol or style of dress may be deeply associated with a particular community and function to identify the user as a member of that community, without simultaneously functioning as a trademark or qualifying for trademark protection.
The result is an imperfect overlap. When a culturally significant name or symbol also functions as a trademark, trademark law may provide a legal framework for addressing certain third-party commercial uses. However, cultural expressions not well suited for trademark protection may nevertheless be improperly commercialized or exploited by third parties without providing the source community with a corresponding remedy under the law. Scholars have examined this mismatch directly and have considered whether trademark law can be used to deter cultural appropriation, including whether source communities can register cultural products as marks and pursue trademark claims against third-party users. Conclusions are decidedly cautious, as trademark law is not particularly well suited to addressing cultural appropriation and viable trademark causes of action may be difficult to establish.[2]
Different Questions, Different Harms
Part of the disconnect stems from what the two concepts are trying to address. A traditional trademark infringement claim asks, among other things, whether a challenged use is likely to cause confusion regarding the source, sponsorship or affiliation of goods or services. Cultural appropriation, on the other hand, can raise concerns even where nobody is confused about the source of the product. Halloween costumes provide a particularly useful illustration of this distinction. Consumers may know exactly which company manufactured and sold a costume incorporating imagery associated with another culture, but that does not necessarily mitigate the harms that may result when the imagery is removed from its cultural context, commercialized without permission or used in a way the source community considers harmful.
For example, retailer Target recently sparked controversy over its sale of a children’s Halloween costume depicting blackface and minstrel imagery. Target subsequently removed the costume and apologized.[3] The incident is a stark reminder of trademark law’s limitations. Although consumers were not confused about the costume’s commercial source, that absence of confusion did not eliminate the harm caused by packaging and selling racist imagery as a consumer product.
The trademark and cultural appropriation inquiries therefore may overlap, but they do not necessarily ask the same question or address the same harm. Trademark law is primarily concerned with the source of goods and services, while criticism of cultural appropriation may instead focus on who is entitled to use and profit from cultural expression, as well as who bears the harm when that expression is misused. In that sense, the very absence of source confusion may limit trademark law’s ability to address the harms associated with cultural appropriation.
When Culture Does Not Fit the Trademark Model
Traditional intellectual property law contemplates identifiable creators and rights holders. In contrast, cultural expressions often develop collectively, sometimes over generations, without a single identifiable creator or owner. To communities, however, the absence of such an identifiable creator does not make cultural expression any less their own even where existing intellectual property law cannot provide an exclusive legal right to control its use. That gap becomes especially visible around Halloween, when cultural expressions can move rapidly from tradition to the costume rack.
The intersection of cultural appropriation and trademark law therefore may be as revealing for what trademark law does not protect as for what it does. A cultural expression can carry deep significance for a community without functioning as a trademark, and an improper commercial use of cultural expression can generate significant public and commercial consequences even without requiring a formal intellectual property claim. Perhaps the harder question, then, is not who owns culture but whether traditional notions of ownership are capable of capturing what it means for culture to belong to a community.
[1] Fordham Law News, Culturally Appropriative Halloween Costumes Create Controversy Nationwide (Oct. 26, 2016) https://news.law.fordham.edu/blog/2016/10/26/culturally-appropriative-halloween-costumes-create-controversy-nationwide/ (quoting Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law).
[2] Sari Sharoni, The Mark of a Culture: The Efficacy and Propriety of Using Trademark Law to Deter Cultural Appropriation 35 (2016) https://law.stanford.edu/wp-content/uploads/2016/09/The-Mark-of-a-Culture-The-Efficiency-and-Propriety-of-Using-Trademark-Law-to-Deter-Cultural-Appropriation.pdf (examining the efficacy of trademark law in protecting source communities from cultural appropriation).
[3] Nicholas P. Brown & Neil J. Kanatt, Target Apologizes for Children’s Clown Halloween Costume After Backlash (Aug. 24, 2026) https://www.reuters.com/business/retail-consumer/target-apologizes-childrens-clown-halloween-costume-after-backlash-2026-08-24/.
