Government Misusing Trademark Law To Stop Biker Gang

from the abuse-of-trademark dept

We’ve seen all sorts of abuses of trademark law over the years, but this one may be the most bizarre (by far). Slashdot points us to a government crackdown on a California-based motorcycle gang called the Mongols. Sixty members in seven states were arrested for a variety of crimes including murder, robbery, racketeering, extortion, money laundering, gun trafficking and drug dealing. Basically, it’s a takedown on organized crime.

However, what’s really odd is that the government is also asking the court to hand over the Mongol’s trademarks. Apparently, the group trademarked the name and insignia. If the court grants the request, police say they’d be able to automatically stop anyone they see wearing a Mongol patch and simply take the jacket away from them on the spot. While I’m sure the police would love that authority, this is clearly not what trademark law was intended to do, and would be a pretty big stretch for how trademark law could be used. It would set a dangerous precedent as well in simply handing over trademarks to the government. While I have no doubt that this motorcycle gang was likely involved in plenty of illegal and dangerous activities, that doesn’t mean it’s okay to abuse trademark law in dealing with them.

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Comments on “Government Misusing Trademark Law To Stop Biker Gang”

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57 Comments
Dan O'Bryan says:

worst point

Even if this were allowed and the government took ownership of the trademark, how does that give them ownership of a jacket that has the trademark on it? The jacket still has value outside of the trademark itself, for which the owner isn’t compensated. Even if it was assumed that the trademark provided the full value, if the jacket owner fairly bought the jacket from the trademark owner, the trademark owner no longer has claim to the jacket. Allowing the government to confiscate all materials with an confiscated trademark on it would be equivalent to allowing old SBC to confiscate all phones with the AT&T logo on it when they bought the AT&T trademark.

I have no problem with forfeiture of the trademark, putting it back into public domain, or even allowing the government to take ownership of the trademark, but its silly to extend the claim to any material that already contains the mark.

Cygnus says:

U.S. Attorney Thomas O’Brien possesses, based on his statements, almost no understanding of trademark law.

Trademark rights are prophylactic in nature. By that, I mean that if you own a federally registered trademark, you can stop others from using a confusingly similar mark on like goods or services.

However, not having a registered trademark does not equate to not being allowed to use the mark.

Further, as far as I know, the Lanham Act (from which federal trademark rights flow) does not criminalize the use of a trademark even when that use infringes the rights of another.

In short, this is simple BS. Not worth getting worked up over.

John Doe says:

This does not surprise me at all. As the first post says, our rights are being eroded one at a time. It started with the right to seize money and property from drug dealers, the unlawful search of motorists in the name of license (alcohol) checks and now the Homeland Security BS. Our constitution is merely considered a suggestion now and not law. All the while, We the People have sat back and watch it happen because these transgressions “don’t affect me”.

mobiGeek says:

Re: It will just get worse

I’d argue that McCain has shown this effect many, many times in this campaign. His choice of Sarah Palin is just one of many such examples. He went for the quick hit without vetting the idea, without thinking it through.

I’m sorry you don’t believe that people who look at “the other party” can possibly be intelligent, thoughtful or insightful.

Rose M. Welch says:

Re: It will just get worse

Oh, honey… You must have flunked that course in school.

Democracy is a political system. It has to do with who participates in making decisions and laws. Socialism is an economic system. It has to do with who owns the wealth and who gets to eat. You can have a democratic and socialist society.

Oh, and by the way, we aren’t a democracy or a damnocracy. We are a republic.

kevjohn (user link) says:

oh em gee

Someday I will come to this site and not be totally shocked and appalled by what I read. Today is not that day.

This is the most absurd thing I have seen since… well since the last absurd thing I saw the government do. Question: if you wore a Mongols patch on your jacket as a form of protest, could they stop you and rip that off your back, I mean confiscate that as well?

Anonymous Coward says:

Some of you need to just relax and stop jumping on the “complete misuse” bandwagon.

The govt (police or whoever) arent using this as a way to take jackets away or even pull people over.

Its to prevent an organized crime group from ever legally using an emblem, etc again that has been associated with some pretty heinous crimes.

mobiGeek says:

Re: Re:

Does the government want to own the trademark of a swastika? How about a white hood and noose?

This is just a ridiculous thing for the government to do. It is a knee-jerk, feels-good, plays-well, sound-bite move without proper thought and reflection on the basic principles involved.

I will not make a correlation of this to, say, a series of McCain campaign moves.

Anonymous Coward says:

Re: Re:

The government’s reach is long enough (too damn long really). Sure, it’s a great idea to stop folks who are committing crimes. Why can’t we stop them for the crimes they have ACTUALLY COMMITTED rather than making it so that they can stop every one? What’s next? Racially profiling Irish Americans because one had a bomb once? Putting all computer technicians in jail because a lot of people who use computers commit crimes? Making motorcycles illegal so that there are no more motorcycle gangs? Really, you think this is a good idea?

Get the folks that committed and aided those committing the crimes. Don’t create new and exciting ways to get into someone else’s business and hassle them.

Jake says:

Re: Re:

Are we supposed to find this comforting? I know nothing about this group and don’t particularly want to, but how do you know that every single member has committed a crime? If the government wants to ban this organisation as a threat to national security then there are presumably procedures for doing so, though that course of action is often counter-productive at best. All this is likely to achieve is to piss off a bunch of guys who like Harley-Davidsons and wearing black leather, and just joined up because they wanted to hang out with like-minded men.

Anon2 says:

overreaching

While the comments by law enforcement re: taking away peoples’ apparel if it bears those trademarks is quite obviously overreaching, and would not withstand scrutiny, asking for transfer of ownership of the club’s IP is just another form of asset forfeiture, done all the time in racketeering cases (indeed, done far too often, IMNSHO). But there’s nothing special about trademarks or IP in general that ought to render it off limits to forfeiture in appropriate cases.

Interestingly, I believe the Hell’s Angels own a number of registered trademarks and derive some real income from their commercial exploitation.

Anonymous Coward says:

If I read correctly what the US Attorney said, the USG is not trying to take possession of the trademark. What it is trying to do is have the trademark registration cancelled. Presumably, this would also include state registrations.

Even if both state and federal registrations are cancelled, there is no basis in law known to me that would authorize any governmental authority, federal or state, to seize any “object” bearing the name/logo. The name/logo should be available for continued use, albeit they would be denied enforcement in a court of law against third party uses. To suggest otherwise would, I believe, raise substantial questions under the First Amendment to the US Constitution.

JACK says:

Re: you are all missing the real issue here

WHEN MEMBERS OF GOVERNMENT AND THE ONES WHO WRITE OUR LAWS AND ARE SUPPOSED TO SEE THEM ENFORFCED ARE CAUGHT CHILD MOLESTING OR CAMPAIN FRAUD, AND OTHER ILEGAL ACTIVITIES, DO THEY CHANGE THE WORDS OF GOVERNMENT, DO THEY TAKE ALL OF THEIR BADGES, CREDITS, PROPERTY,FRATERNATY PINS AND SHIRTS AND BANNERS, ECT.HELL NO BUT THEY SHOULD, SINCE A FEW ARE SUPPOSEDLY GUILTY AS THE MONGOLS MC, AND THEY WANT TO DISBAN OUR TRADEMARKS AND BANNERS, MAYBE THEY NEED THE SAME DONE TO THEM, SEEMS AS THOUGH MANY ARE OR SHOULD BE GUILTY OF ASS. JUST AS THE MONGOLS M.C.

Horneytoad ( less the toad) says:

The point you are all missing is that I can legally draw any copyrighted image on my own jacket and wear it riding down the highway. I have a right to create pretty much anything I want (except money, porn, etc.) and wear it. As long as I don’t try to sell it they have no right to take my jacket. I can draw a nike swoosh and write Nike on my forehead. There is nothing Mike can really do about it. It is my freedom of speech

CatBandit says:

PAYBACK ... the cops of today were the targets of bullys in school

QUOTE
“… police say they’d be able to automatically stop anyone they see wearing a Mongol patch and simply take the jacket away from them on the spot. While I’m sure the police would love that authority, this is clearly not what trademark law was intended to do … END QUOTE

Interesting article – and thread. If the statement in the article (above) was actually made and not just inferred, it becomes a very scary issue. And that puts the conversation where it should be, the idea that this issue and the concept that the “police are the biggest gang in town …” are in fact parallel discussions.

nipseyrussell says:

Anonymous Coward # 8 says “Some of you need to just relax and stop jumping on the “complete misuse” bandwagon.The govt (police or whoever) arent using this as a way to take jackets away or even pull people over.”
um, ok. he should read the article wheree U.S. Attorney Thomas O’Brien says The indictment seeks a court order outlawing further use of the name, which would allow any police officer “who sees a Mongol wearing this patch … to stop that gang member and literally take the jacket right off his back”

taylor says “i would like to know what they will do when they tattoo the trademark onto their bodies. peel their skin off?”….which is, of course, what the gangs do when thye feel you no longer have the right to wear that tattoo!

Idiot Parade says:

Idiot posters:I have to ...

Idiot posters:

I have to say that Techdirt seems to attract the dim bulbs of the world: college kids, mamma’s boys, serial killers, and me. Sad.

Using the Mongrals’ trademark to keep them from wearing their jackets is brilliant, and legally sound. Trdemarks are not referenced in the constitution in any way.

Your blog’s position that it is an abuse of the trademark laws is misguided because you seem to place trademark law ahead of public safety. Yowza. That’s Perhaps the most obtuse thought ever uttered on this website–which is saying a lot.

Hey poster Matthew: scores of Mongrals were arrested just yesterday. No Mongral did a thing to any cop. It already occurred.

But there was a funeral, dummy. It was for the biker gang.

Read the news, or get back to class. Just stop posting.

Killer_Tofu (profile) says:

You seem quite uneducated ...

You seem quite uneducated buddy.
Trademarks are to prevent consumer confusion. So this blog is spot on for saying that this is NOT what trademarks are for.
You are thinking of copyright.

And this is no way is promoting public safety by taking off their jackets. If you think removing a jacket from one of the gang memebers is going to mystically make them a nice person, then you have more screws loose than the government does on this one.

Idiot Parade says:

Dan: Why did you delete my post? BC I disagreed w you?

Dan:

Just because someone disagrees with you doesn’t mean you have to delete their post. Real newspapers don’t do that. Real journalists with thicker skins than you don’t do that.

C’mon Dan. That’s mightly soft of you to delete a post that disagreed with your junior high knowledge of law.

You’re bigger than that, Dan.

Aren’t you?

IAmTheIdiot says:

An apology

Dan:

I call you dan because I like the name Dan better than Mike.

The government is using the trademark violation to discourage a criminal organization from advertising itself–a move that occurs regularly in this world to encourage public safety.

Tofu: It is NOT a question of what the trademark is defined to do. It is a question of possession of the trademark (who owns it) and the government’s ENFORCEMENT of its OWNERSHIP of said trademark as a way to remove the Mongrols name from the streets. Simple as that.

It is a brilliant strategic move. As usual, this blog focuses very narrowly on the issue rather than the application of said issue. My guess is because Dan and others are too young to see how the world really works. JMHO.

Think of it this way, guys. The government owns the trademark, and is enforcing its ownership of the trademark by removing non owners from using it in ANY way.

Completely legal. Something that could not be reversed.

Watch and learn, boys.

Renegadez says:

Re: An apology

YOU ARE THE IDIOT That is true and I like calling you YOU ARE THE IDIOT better then Dan or Mike wow what a tard you are! The guys name is MIKE not Dan who cares what name you like better just shows YOU ARE AN IDIOT. Beyond that the government does NOT own the Trade Mark the person who registered owns hence the reason you PAY and REGISTER the Trade Mark to show ownership and its never gonna going to fly the goverment is not going to get this one by watch and learn how the real world work YOU ARE THE IDIOT

Renegadez/Retard says:

Rene: What will be and what you wish are 2 different things

Rene:

Honey. I am going to write slowly you you can follow along. The government is going to successfully obtain the Mongols’ trademark.

When it does, it is going to ENFORCE its ownership of the trademark against the Mongols, preventing them from wearing their stupid jackets. It WILL occur, whether you want it to or not.

Why don’t you go back to blowing fat bikers, and leave the intellectual heavy lifting to people who went to college, and preferably, aren’t named Rene.

Thanks, Sweetie:

Now back to work at Pepe’s Tacos.

Lawless says:

The colors they ware help identify them and it allows our not so bright government do their jobs. It just goes to show you how much harder the government wants to make on them selves to ID who is doing what, not to mention how much money and ATF/FBI agents it going to take to remove their colors from them. POWER Corrupts Absolutely weather it is called Mongral, Hells Angels, FBI, CIA, ect… Be careful what power we allow our government to have because the next victim might be you.

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