Intellectual property rights are tools by the colonizer to keep people of color and ‘uncivilized’ people lower than them – recent legal cases prove instability even when some successes occur

Three recent trademark cases -- Harjo, Blackhorse, and Tam -- illustrate the inescapable intersections between race and intellectual property rights. The litigation in the first two cases, initiated by Suzan Shown Harjo, Amanda Blackhorse, and a group of Indigenous activists, contested the protectability of a famous NFL football team's trademark on the basis that it is disparaging to Native Americans. 37 The lawsuits that Harjo and Blackhorse filed spanned decades  [*685] and raised important questions about the protection of racist mascots in the instant cases and more generally. 38 While Blackhorse was ultimately victorious in securing the cancellation of the Washington R**** trademarks, her legal triumph was short lived. The outcome in Tam raised fundamental questions about the constitutionality of Section 2(a) of the Lanham Act and, accordingly, the recently announced outcome in Blackhorse. 39 While these three cases raise rather obvious issues around race and representation, I am interested in how the reasoning upon which their holdings turn implicate questions of racial chronopolitics. I approach the analysis of temporality through CRTIP, a constantly evolving critical framework for applying Critical Race Theory to intellectual property cases. CRTIP is, as Keller and I define it, "the interdisciplinary movement of scholars connected by their focus on the racial and colonial non-neutrality of the laws of copyright, patent, trademark, right of publicity, trade secret, and unfair competition using principles informed by CRT." 40 CRTIP identifies "a body of scholarship with shared tenets about the racialized hierarchies inherent in IP law and its attendant ordering of knowledge." 41 Theorizing at the intersections of Critical Race Theory and intellectual property is not intended to force scholars into CRTIP as an analytic framework. Rather, it is to introduce one way of reading intellectual property scholarship that takes up questions of race and (neo)coloniality together, in a larger, always emergent conversation about racial justice."Intellectual property's economic structure is 'always already' raced," 42 because capitalism's orientation to knowledge is always already raced. Betsy Rosenblatt, for instance, demonstrates about copyright law that "[i]t rewards appropriation of materials perceived as primitive, raw, or 'folk' by purveyors of dominant culture, while punishing appropriation of materials that it associates with higher culture or views as already completed." 43 As such, copyright law operates as "the language of the colonizer." 44 Kara Swanson similarly shows about patent law that its "ideology of slavery reached into the technical bureaucracy of the patent office, an arena of law and of the administrative state frequently considered outside politics." 45 As such, patent law implicates "an ultimate claim of whiteness as intellectual property." 46 Knowledge, in both instances, is ordered in a manner that centers whiteness and its attendant estimations of the value of creation and knowledge. Trademark law too produces and entrenches visual economies of whiteness. Rosemary Coombe writes that trademarks "denied or downplayed the cultural and ethnic differences of some 'Americans'" through "the medium of the consuming body and embodiment...of others whose claims to an American subjectivity were complicated by contemporary relations of subjugation." 47 Put differently, America's visual culture, as constituted through trademark law, constituted whiteness as valuable by objectifying people of color. One way that the "scopic regime" 48 of trademark law operated was through the articulation of people of color as primitive, i.e. from a time past. As Coombe puts it, in the late nineteenth and early twentieth centuries "we see preoccupation with the frontiers of civilization and the containment of the primitive." 49 In the sections that follow, I explore how Harjo and Blackhorse not only reinforce temporally based race discrimination by portraying Native Americans as primitive but also illustrate how the manipulation of time through legal procedure can advantage certain litigants over others, with considerable racial and colonial consequences. 50