‘Redskins’ cancellations do not violate First Amendment, says DoJ

The US Patent and Trademark Office (USPTO) did not violate the Washington Redskins’s right to free speech when it cancelled six of its trademarks last year, the US Department of Justice (DoJ) has claimed.

The intervention from the DoJ comes as the US District Court for the Eastern District of Virginia is hearing an appeal from the National Football League (NFL) team against the USPTO’s decision to cancel trademarks containing the word ‘Redskins’.

In a notice filed with the court on Monday (March 23), Dana Boente, an attorney for the DoJ, said that cancelling the trademarks does not violate free speech and that the court should avoid becoming the first to “disrupt the careful balancing of interests” developed over decades of trademark law.

“Not only do trademarks function minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration,” Boente added.

In June the USPTO’s Trademark Trial and Appeal Board (TTAB) cancelled six trademarks containing the term ‘Redskins’, a slang term for a Native Americans, on the grounds that they were “disparaging” and “offensive”.

The marks were all registered between 1967 and 1990.

But the team appealed against the decision, claiming it is in violation of the First Amendment, the US’s statute covering free speech rights.

The DoJ’s intervention is consistent with its position so far in the dispute. In January, the DoJ publicly backed the TTAB’s decision to cancel the trademarks.

In a statement issued at the time, Joyce Branda, acting assistant attorney general, said that the DoJ will “strive to maintain the ability of the USPTO to make its own judgment on these matters, based on clear authorities established by law”.

The Washington Redskins did not respond to a request for comment.