Civil liberties group backs Redskins in trademark fight

The American Civil Liberties Union (ACLU) has lent its support to the Washington Redskins National Football League (NFL) team in a dispute surrounding the decision to strip the team of six of its trademarks.

In a submission filed at the US District Court for the Eastern District of Virginia, the ACLU, which describes itself as the “nation’s guardian of liberty”, said the US Patent and Trademark Office’s (USPTO) decision to cancel six trademarks containing variations of the word ‘Redskins’ went against free speech rights.

A ‘redskin’ is a slang term for a Native American.

In June last year, the Trademark Trial and Appeal Board (TTAB) at the USPTO revoked six trademarks after agreeing with a group of Native Americans, including the Oneida Indian Nation, that they were offensive.

The Washington Redskins filed a lawsuit in August last year in response, challenging the TTAB’s ruling by claiming that the Lanham Act, the US’s primary trademark statute, was flawed.

In its complaint, filed at the Virginia eastern district court, the team said that section 2(a) of the act—which prohibits trademarks that “disparage … persons, living or dead, institutions, beliefs, or national symbols”—violated the First Amendment, which protects free speech rights.

In its amicus curiae style brief, filed on Thursday (March 5), the ACLU said although there is “little doubt” that many Native Americans view the word as “at least problematic, if not outright racist”, the question of whether certain speech is distasteful is “entirely distinct” from the question of whether the government can constitutionally disadvantage a trademark registration for that reason.

“Under the First Amendment, viewpoint-based regulation of private speech is never acceptable, regardless of the controversy of the viewpoint,” it said.

An amicus curiae is a party not involved in a case that offers information concerning or an opinion on it.

In January,  the US Department of Justice (DoJ) had thrown its support behind the USPTO.

In a statement on its website, the DoJ said it would “defend the federal authorities” of the UPSTO and TTAB and was “dedicated to defending the constitutionality” of the Lanham Act.

Jesse Witten, partner at law firm Drinker Biddle & Reath and who is representing the Native Americans, did not respond to a request for comment.

Bob Raskopf, trademark attorney for the Washington Redskins and a partner at law firm Quinn Emanuel Urquhart & Sullivan, did not respond to a request for comment.