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Judge hears arguments on Redskins trademark battle; lawyers cite Confederate flag ruling

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ALEXANDRIA, Virginia — A U.S. Supreme Court ruling last week on license plates and the Confederate flag could be bad news for the Washington Redskins.

Lawyers for Native Americans who object to the Redskins' name and trademark say their case has been strengthened by the decision, which found that Texas was not required to issue specialty license plates featuring the Confederate battle flag.

A judge Tuesday heard arguments in U.S. District Court on a lawsuit filed by the team seeking to preserve its trademark registration for the Redskins name. Last year the Trademark Trial and Appeal Board ruled that the team's trademark registration should be canceled on the grounds that it may be offensive to Native Americans.

U.S. District Judge Gerald Bruce Lee, who will decide the case, asked lawyers at the start of the hearing to focus on how that Supreme Court case affects the Redskins' case.

Jeff Lopez, lawyer for the Native Americans, said their case has been boosted because the high court ruled that Texas was not infringing on the free speech rights of a Confederate heritage group by rejecting a special interest license plate design that shows the Confederate flag. Similarly, he argued, the federal government is not infringing on the Redskins' free speech rights just by denying them the protection of a federal trademark.

The Redskins' lawyer, Robert Raskopf, said the two cases are distinct because license plates are issued by the state, and forcing to state to print license plates with the Confederate flag is equivalent to forcing the government to adopt the Confederate group's appreciation for the flag. In contrast, he said, merely issuing a trademark registration does not require the government to take a position advocating the Redskins' viewpoint.

The team has argued in court papers that losing its trademark protections infringes upon its free speech rights. Lawyers for the Native Americans say the case has nothing to do with free speech. The Redskins are free to use the name even if they lose the trademark battle; they just lose some of the legal protections that go along with a registered trademark.

PHOTO: FILE - In this Aug. 28, 2009 file photo, the Washington Redskins logo is seen on the field before the start of a preseason NFL football game in Landover, Md.  A judge is hearing arguments from the Washington Redskins on June 23, 2015, that canceling the team's trademarks would infringe its free-speech rights. The hearing is scheduled on a lawsuit to overturn a decision by the Trademark Trial and Appeal Board to cancel the trademark on the grounds that it may be offensive to Native Americans. (AP Photo/Nick Wass, File)
FILE - In this Aug. 28, 2009 file photo, the Washington Redskins logo is seen on the field before the start of a preseason NFL football game in Landover, Md. A judge is hearing arguments from the Washington Redskins on June 23, 2015, that canceling the team's trademarks would infringe its free-speech rights. The hearing is scheduled on a lawsuit to overturn a decision by the Trademark Trial and Appeal Board to cancel the trademark on the grounds that it may be offensive to Native Americans. (AP Photo/Nick Wass, File)

The Justice Department has also intervened in the case on the side of the Native Americans. The intervention was prompted by the team challenging the constitutionality of the law that requires trademark examiners to evaluate whether a trademark is disparaging.

Lee questioned the team on how exactly it would be harmed by losing the trademark registration.

"No one is going to forget the Redskins trademark or team if the registration is canceled," he said.

Raskopf countered that "trademark registration is a staple of brand management" in the modern era and that no corporation today would pursue a brand development strategy without a trademark registration.

Besides all the narrow legal questions, Lee also heard arguments on the fundamental substantive question in the case: whether the Redskins name is in fact offensive. More specifically, the judge must evaluate whether the name was offensive to Native Americans back in the 1970s and '80s, when the mark was last registered.

The team denies the name is offensive. It cites the fact that high school and Little League teams on Indian reservations have used the Redskins name. It also says that, in a modern context, the name Redskins has essentially become synonymous with the football team and has its own positive association unrelated to the word's use as a description of Native Americans.

Lawyers for the Native Americans say there is a 40-year history of tribal leaders and activists objecting to the Redskins name. They also cite the dictionary: Many editions, though not all, have described the word as pejorative for many decades.

Lee will issue a written ruling at a later date. He can rule for either side or he can determine that the case should be decided at a formal bench trial later this year.

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