Government Misusing Trademark Law To Stop Biker Gang

from the abuse-of-trademark dept

Wed, Oct 22nd 2008 10:16am — Mike Masnick

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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Filed Under: abuse, biker gang, mongols, trademark

57 Comments

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Anonymous Coward, 22 Oct 2008 @ 10:39am

Constitutional death by a thousand cuts. One at a time these precedents will continue to build up and all of a sudden one day Chinese people are going to look at us and say "Man, I'm happy I don't live there"
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Dan O'Bryan, 22 Oct 2008 @ 10:41am

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.
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Cygnus, 22 Oct 2008 @ 10:52am

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.
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John Doe, 22 Oct 2008 @ 10:53am

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".
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Damnocracy, 22 Oct 2008 @ 11:00am

It will just get worse
This is going to seem meaningless compared to the socalistic state we will become if we do indeed elect Obama. People don't see a big picture they only see what will effect them not what will be the consequences of their decisions.
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kevjohn, 22 Oct 2008 @ 11:01am

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?
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Chuck Nussman, 22 Oct 2008 @ 11:02am

Government Misusing Trademark Law . . .
All I can say is, I'm so glad I didn't get that Mongols tattoo I was thinking about.
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Anonymous Coward, 22 Oct 2008 @ 11:17am

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.
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matt (profile), 22 Oct 2008 @ 11:19am

counterpoint?
As an interesting counterpoint could someone claim that if the government does take this trademark that it would required for the trademark to then become public domain as all government property technically is?

/just a stretch
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mobiGeek, 22 Oct 2008 @ 11:20am

Re: worst point
Can you imagine Nike deciding they want to take back all clothing with a swoosh (or even a "swoosh-like" infringing) logo?

They own the swoosh trademark. So, am I about to see a ton of hatless, shoeless, topless, otherless people on the sidewalks??
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John Doe, 22 Oct 2008 @ 11:24am

Re:
I guess you fall into the "doesn't affect me" category. One day, it will affect you and there will be nobody left to help you. Sound familiar?
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mobiGeek, 22 Oct 2008 @ 11:24am

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.
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Anonymous Coward, 22 Oct 2008 @ 11:27am

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.
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Anon, 22 Oct 2008 @ 11:30am

Re: oh em gee
Wearing the patch in protest would be a bad move in the first place. That patch would be gang colors, colors you have not earned the right to wear. This could open you up to reprisals from both the Mongols and the Hells Angels :)
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Scaredy-cat, 22 Oct 2008 @ 11:32am

slippery slope
mmm...its becoming increasingly difficult in many places to actually distinguish between organised crime and government...reminds me of what somebody once said, "the police are the biggest gang in town!".
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Anon2, 22 Oct 2008 @ 11:36am

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.
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Anonymous Coward, 22 Oct 2008 @ 11:36am

Re: It will just get worse
It will only be meaningless to you. For the rest of us, only your pointless, uneducated, ill-informed, Kool-Aid induced comment is meaningless.
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Jake, 22 Oct 2008 @ 11:47am

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.
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Anonymous Coward, 22 Oct 2008 @ 11:53am

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.
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chris (profile), 22 Oct 2008 @ 11:53am

you are all missing the real issue here
a freaking biker gang had a registered trademark.

why does a biker gang need a registered trademark?

are there issues with other gangs that can't be settled with chains and bats and boards with nails driven through them?

WTF?
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mobiGeek, 22 Oct 2008 @ 11:55am

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.
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Horneytoad ( less the toad), 22 Oct 2008 @ 11:55am

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
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CatBandit, 22 Oct 2008 @ 12:10pm

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.
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John Doe, 22 Oct 2008 @ 12:23pm

Re: Re: It will just get worse
Funny thing about Kook-Aid; once having drank it, you cannot recall doing so. As in your case; you have no recollection of drinking the Obama Kool-Aid. Effective stuff, that Kook-Aid.
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mobiGeek, 22 Oct 2008 @ 12:29pm

Re: you are all missing the real issue here
Who are we to determine what groups are allowed to trademark?

Why does a group of snot-nosed kids messing around with wires and stuff in a garage need a trademark?
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Bob, 22 Oct 2008 @ 12:34pm

The U S Constitution
I thought the Constitution of the USA prohibited the ownership of patents and such by the Government.
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John Doe, 22 Oct 2008 @ 12:39pm

Re: The U S Constitution
That old document? It doesn't mean much anymore does it? I think it was more of a guideline or suggestion; not something to run a country by.
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John Doe, 22 Oct 2008 @ 12:40pm

Re: Re: Re: It will just get worse
Just noticed I mistyped Kool-Aid as Kook-Aid. Maybe a Freudian slip of the fingers? Remember you heard it hear first when you add the term to Wikipedia. ;>)
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Anonymous Coward, 22 Oct 2008 @ 12:42pm

Re:
It's easy to change the emblem, the repercussions for every other law abiding American will forever be squandered, and just like every other time a law is made to try to fix crime, the criminals find a new way to be a criminal and the honest man is fucked. over and over and over.
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Taylor, 22 Oct 2008 @ 12:44pm

Re: worst point
i agree and i would like to know what they will do when they tattoo the trademark onto their bodies. peel their skin off?
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Mark Regan, 22 Oct 2008 @ 2:00pm

Too Late, The Government's Doing It Already
The IRS claims they own the trademarks on the bills I earn at work and they think nothing about taking away from me about $15,000.00 worth and GIVING them to banks and and insurance companies and brokerages worth BILLIONS. What's the difference?
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Rose M. Welch, 22 Oct 2008 @ 2:03pm

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.
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nipseyrussell, 22 Oct 2008 @ 2:45pm

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!
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Blatant Coward, 22 Oct 2008 @ 3:04pm

Why don't they just activate the DRM for the gang colors, and force everyone to reregister their clothes with EA?
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Mathew, 23 Oct 2008 @ 7:38am

I'm just waiting to see the ...
I'm just waiting to see the first time the attempt to take the colors off of one of those 1%er's. That poor hump of a cop that attempts that will get a nice funeral I'm sure.
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Idiot Parade, 23 Oct 2008 @ 9:43am

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.
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Killer_Tofu (profile), 23 Oct 2008 @ 9:52am

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.
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Idiot Parade, 23 Oct 2008 @ 11:18am

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?
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Mike (profile), 24 Oct 2008 @ 12:34am

Re: Idiot posters:I have to ...
Using the Mongrals' trademark to keep them from wearing their jackets is brilliant, and legally sound.

It's neither brilliant nor legally sound. It's incredibly legally questionable.

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

No. That's simply untrue. However, we believe that laws should be used correctly. If public safety is the issue, use laws intended for public safety.
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Mike (profile), 24 Oct 2008 @ 12:36am

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

Who's 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.

Did you notice that ALL of the comments disappeared? Ah, maybe not.

Here's the explanation: http://www.techdirt.com/articles/20081023/1124452627.shtml

Funny that you first call us idiots for overreacting, and then it turns out that you're the one who overreacted.

We rescued your comment though, so maybe an apology is in order? Or is that too difficult?
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Bav, 24 Oct 2008 @ 8:53am

I'm hoping the Mongol's gang start having hot stripper type girls wear their jackets with nothing on under the jacket and parade them around town on the back of their bikes. When a cop pulls them over and demands she/they remove their illegal jackets, VOILA...a free show!

Talk about publicity!

:)
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IAmTheIdiot, 24 Oct 2008 @ 10:13am

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.
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Anonymous Coward, 24 Oct 2008 @ 10:25am

Re: you are all missing the real issue here
The Hells Angels and Outlaws also have registered marks. Keeps people from selling bogus merch. And yes, there are people stupid enough to sell things with outlaw biker logos without getting approval.

Most biker clubs are also incorporated.
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Renegadez, 24 Oct 2008 @ 9:30pm

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
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Renegadez/Retard, 26 Oct 2008 @ 2:15pm

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.
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Lawless, 27 Oct 2008 @ 6:49pm

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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JACK, 29 Oct 2008 @ 12:32pm

Re: worst point
YOU BE;LONG IN RUSSIA
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JACK, 29 Oct 2008 @ 12:40pm

Re:
WHY NOT RUN A FEDERAL BACKGROUND CHECK ON ALL ITS MEMBERS, I BELIEVE NOT EVERY MEMBER IS GUILTY OF ANY CRIME, YOU ARE SO FULL OF SHIT, IF YOU HAVE DONE NOTHING AGAINST THE LAW DOES NOES CONSTITUTE ANY GUILT BY ASSOCIATIN
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JACK, 29 Oct 2008 @ 12:55pm

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.
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Joe camel, 30 Oct 2008 @ 8:12pm

Trademark
What a joke. If you know any Mongols you would know they tatoo the patch on their bodies. Will the cops demand members to remove that too. Total abuse of power.
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Pratul, 9 Nov 2008 @ 9:56am

Heavy handness
Now that's what i call Government Heavy Handedness.
___________
Peatul
for sale by owner
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Anonymous Coward, 9 Nov 2008 @ 10:02am

Government seems to loose out on this. Tryin to gag by foolish judgment.
__________
pratul
for sale by owner
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Luxxxcorp, 22 Jan 2009 @ 3:33am

Biker Gang love Charlton
CGC is the place to be. Return
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DavidDock (profile), 8 Jun 2009 @ 10:20pm

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. mls
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dnball (profile), 3 Aug 2009 @ 2:15pm

Court rules today (August 3, 2009) that the "Mongrol" trademark is NOT property subject to forfeiture because the Mongrols enterprise (the mark owner) was not indicted. http://tr.im/vl1A (pp.8-14)
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Jon, 3 Jan 2010 @ 5:41pm

Get boys lockem up.
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Bergman (profile), 2 Jul 2011 @ 1:47am

Re: worst point
If trademark law DID support such a seizure capability, what would happen if someone painted a Microsoft logo on the Washington Monument? Would Bill be able to seize the Monument from the feds?
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