M. Alexander Pearl has published “Redskins: The Property Right to Racism” in the Cardozo Law Review.
Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are wholly inadequate. Under section 2(a) of the Act, “disparaging” trademarks are subject to cancellation of federal registration benefits. This does little to economically affect the value of the trademark, thereby having no bearing on changing the name. Finally, I suggest a legislative solution that applies real economic pressure to change the team name. Utilizing the tool of express federal preemption, I suggest an approach that directly undermines the economic value of the trademark by precluding trademark infringement suits against unlicensed users of the trademark. This creates real pressure to change the name. Ultimately, this issue directly confronts the doctrinal inquiry into the extent of property rights in intellectual property forms.