Feds Still Trying To Abuse Trademark Law (?!?) To Stop Motorcycle Gang

from the consumer-confusion? dept

Thu, Jun 30th 2011 7:29am — Mike Masnick

Nearly three years ago, we wrote about an absolutely ridiculous plan by the US government to try to deal with a motorcycle gang. Beyond just arresting approximately 80 members of the Mongols motorcycle gang around the country and charging them with a variety of criminal charges including murder, robbery, racketeering, extortion, money laundering, gun trafficking and drug dealing... the US government also decided it wanted to seize the trademark of the gang, and then use that to try to stop the gang. At the time, they claimed this would allow them to simply take jackets off of motorcycle riders by claiming trademark infringement. Of course, that's not (at all) how trademark law works.

I had assumed (incorrectly, it appears) that this issue had gone away, but Dave P. alerts us to the news that three years later, the fight over who gets to own the logo is still ongoing. Apparently, while a judge issued an injunction against the gang using the logo, things went further last year, when the US government tried to officially forfeit the logo. While a judge initially agreed, he reversed his original ruling, after remaining members of the Mongols claimed that they collectively owned the logo, and the government couldn't just seize it. The government, in turn, claims that the trademark is actually held by just one guy, who has already pleaded guilty to various charges.

Of course, I still can't fathom why the government thinks holding such a trademark is useful. It's not going to stop gang members. It wouldn't take much effort to find a new logo, and the government likely wouldn't win if it actually dared to try to make use of the trademark.

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Filed Under: feds, mongols, motorcycle gang, trademark

41 Comments

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Hulser (profile), 30 Jun 2011 @ 6:50am

Consumer protection
This is outrageous! I mean, how am I supposed to know if the guy I'm buying crystal meth from is an actual Mongols member if I don't see their trademarked logo on his jacket?
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Jay (profile), 30 Jun 2011 @ 7:03am

I would pay very close attention to the rulings that come out here.

It's uncanny how the domain seizures seem so similar to this trademark issue.
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Comboman (profile), 30 Jun 2011 @ 7:47am

Public Domain?
If copyrights & patents held by the US government are automatically in the public domain, does the same this apply to trademarks that they "acquire"?

Also, if government seizes the trademark of any organization who's head is a criminal; does that mean they own the trademarks of Enron? WorldCom? Martha Stewart? What about John Dillinger?
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Anonymous Coward, 30 Jun 2011 @ 7:53am

You said: "I still can't fathom why the government thinks holding such a trademark is useful"

Me: I think that often your understanding of things is limited by a sort of direct line thinking that you use.

What makes this useful is the disruption factor. If you cannot get the gang members on normal criminal charges (because they are slick and know how to hide), at least you have another reason to hassle them and make their day less enjoyable. It is another method to roust them, another way to touch their lives, and to make their criminal enterprise a little less enjoyable to be part of.

Heck, if they continue to use it, the government could sue them for millions for violating trademark, and that would likely stick! Imagine that.

You really need to think outside of the box.
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Anonymous Coward, 30 Jun 2011 @ 7:55am

What a brilliant idea!

Let's trademark "terrorism"! That way nobody could be a terrorist because that would be trademark infringement! Terrorist organisations everywhere would be forced to disband!

Boo-ya, terrorism is over!
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E. Zachary Knight (profile), 30 Jun 2011 @ 8:04am

Re:
You know what, you're right. If the government doesn't like a person, but can't find anything criminal to charge them with, they have options.

For instance, they can exercise eminent domain on the person's house and then charge that person for trespassing.

Or they can find something inane and unique that person does and pass a law that makes that activity illegal and then charge him for illegal conduct.

It is so simple. The government should be free to hold vendetta's against anyone they please and act in any way they want as long as they are acting as a bully under the guise of law.
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Anonymous Coward, 30 Jun 2011 @ 8:05am

Re:
So, the government does something borderline illegal to catch criminals? And you support this?

** claps hands sarcastically **
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Anonymous Coward, 30 Jun 2011 @ 8:08am

I'd love to see them TRY and remove the jacket from a motorcycle rider.
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Jeff (profile), 30 Jun 2011 @ 8:10am

The USG went all OG on the Mongols because they resented the competition...
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Lord Binky, 30 Jun 2011 @ 8:15am

WTF ARE YOU DOING WITH THAT KNIFE?
What happens to the guys with a tatto? Do they get to seize that too? Oh man that's gunna hurt worse than getting the tattoo.....

On the bright side they can drum up public support by holding a new trademark/Logo Contest giving the winner a "favor" of their choice. Maybe even a package filled with a "mysterious" substance of their choice. It'd be great.
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Lord Binky, 30 Jun 2011 @ 8:22am

WTF ARE YOU DOING WITH THAT KNIFE?
What happens to the guys with a tatto? Do they get to seize that too? Oh man that's gunna hurt worse than getting the tattoo.....

On the bright side they can drum up public support by holding a new trademark/Logo Contest giving the winner a "favor" of their choice. Maybe even a package filled with a "mysterious" substance of their choice. It'd be great.
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Anonymous Coward, 30 Jun 2011 @ 8:23am

Hey Mike, thanks for running the story. I posted an off topic link to the LAT article in the comments section of another article ten days ago. That article and LAT link below.

http://www.techdirt.com/articles/20110620/04351314760/bittorrent-sued-patent-infringement. shtml

http://latimesblogs.latimes.com/lanow/2011/06/feds-wants-to-bar-mongols-biker-gang-from-tra demarking -its-logo-.html
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Gwiz (profile), 30 Jun 2011 @ 8:30am

Re:
What makes this useful is the disruption factor. If you cannot get the gang members on normal criminal charges....

Um. If you cannot get the gang members on normal criminal charges than you haven't proven they have done anything illegal.

And you still think it's a good thing to harass them anyways. It's because of scary overzealous people like you that I try my best to remain anonymous.
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Chargone (profile), 30 Jun 2011 @ 8:42am

Re:
i think you've got the logic right...

fairly sure i don't think it should be done that way, but it seems like the sort of thinking that would go into such a decision.
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Qritiqal (profile), 30 Jun 2011 @ 8:51am

Re:
Next step in the communist government's plan:

Nationalize the actual corporations in order to stop "infringement" and "criminal activity".

I realize this instance is about a motorcycle gang, but isn't arresting 80 members of the gang for ACTUAL crimes sufficient?

By setting precedent of taking their trademark, they get one step closer to their vision of a communist U.S.
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CommonSense (profile), 30 Jun 2011 @ 8:52am

Re:
Ahhh, so it's useful for the government if they'd like to terrorize these people. I see, so you think it's a good thing that our government has become a terrorist organization....very interesting...
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Josh in CharlotteNC (profile), 30 Jun 2011 @ 9:07am

Re:
Heck, if they continue to use it, the government could sue them for millions for violating trademark, and that would likely stick! Imagine that.

Awesome, twisting laws way beyond what their stated purpose is makes me proud to be an American. /sarc

The government got Capone on tax evasion without having to twist the law. Yet, Lori Drew was acquitted because the prosecutors tried to twist the Computer Fraud and Abuse Act far beyond what it was designed for.

On a scale of 1-10, please rate Al Capone, and Lori Drew. 1 being the stupid criminal who tries to rob a convenience store and gets stuck in the ventilation duct, and 10 being criminal mastermind.

We (supposedly) live in a free country with limited government. Even criminal suspects are presumed innocent and have rights that the government cannot violate. A government that respects the rights of its enemies, dissidents, and criminals shows enlightenment. Brutal suppression without regard for collateral damage shows nothing more than barbarism.
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Anonymous Coward, 30 Jun 2011 @ 9:16am

Re: Re:
I don't approve or disapprove. I sort of look at it in balance. Constitutional rulings by the SCOTUS has made it incredibly difficult for law enforcement to prove large scale criminal activity, and budget cuts and criminals being turned out early to avoid prison crowding has led us to a place where it is almost impossible for the police to do anything about organized crime.

The results are that prosecutors are forced to squeeze through smaller and smaller holes, while criminal gangs operate on a wide scale, often very openly, with few concerns. The end result is the misapplication of laws in an attempt to "get them", because there is no other way within our system that permits it.

Just remember, as you dance around in joy as file traders and copyright violators find ways to avoid the law, the larger criminal gangs are doing the same, and that isn't a good thing.

So do I support the government in this action? Not really. But I can understand why they do it, and that is different.
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King Joe IX, 30 Jun 2011 @ 9:26am

Re: Re:
We heartily approve of these options, though nothing displays the manifest power of the throne more than attainder, which we have used to gaol many an opponent to my rightful rule.
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Anonymous Coward, 30 Jun 2011 @ 9:30am

Re: Re:
I don't think he agrees with the thought process, I think he was just trying to explain the implications of the thought process.

It is the normal thought process on how to deal with "Known" criminals that you can't pin anything on...kinda like Capone, the knew he was behind all of those crimes, but they couldn't pin anything on him because he always used lackeys that were too afraid of him to point fingers. So the best they were able to do was tax evasion...I guarantee you that if they didn't have tax evasion to go on, they would have cooked something else up.
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btr1701 (profile), 30 Jun 2011 @ 9:30am

Re: Hassle
> at least you have another reason to hassle
> them and make their day less enjoyable

In a free society, the government shouldn't be in the business of "hassling people".

If they've committed a crime and you have the proof, arrest them for it and prosecute them.

If they haven't or you don't, then "hassling" them by twisting laws beyond their intent is ridiculous behavior.

Just this week everyone here was up in arms over the cops in Rochester "hassling" citizens who were having a meeting by issuing parking tickets to cars parked millimeters too far off the curb.

This is what you get when let the government criminalize almost everything. Most people have no clue how many laws they violate on a daily basis just going about their normal lives, none of which are ever enforced. But it gives the government a huge playbook to draw from when you piss them off and they decide they need to "hassle" you to put you back in your place.
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Anonymous Coward, 30 Jun 2011 @ 9:33am

Re: Re:
do you think they wouldn't have twisted laws to nail Capone if they didn't find the tax evasion bit? He was too slippery in everything else if he kept an eye on that he would likely not have had a single charge they could hold him on.
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Anonymous Coward, 30 Jun 2011 @ 9:36am

Re:
actually they usually don't remove the jacket...if its an out numbered officer they will tell them to remove the jacket, if the officers out number the bikers or are at least in large numbers they will rip the patches off the jacket while they arrest the biker.
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Matt (profile), 30 Jun 2011 @ 9:44am

And what happens if the gov't does seize the trademark. Do they honestly believe that a group involved in murder, robbery, racketeering, extortion, money laundering, gun trafficking and drug dealing would give a crap about trademark infringement? "We'll do all that, but trademark infringement? There are some lines you just do not cross."
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Gwiz (profile), 30 Jun 2011 @ 9:44am

Re: Re: Re:
So do I support the government in this action? Not really. But I can understand why they do it, and that is different.

I understand it too - that's the part that scares me.

We *suspect* you are committing Crime A, but we can't prove it, so we *make up* Crime B to prosecute you with.

That slope is a way too slippery for my comfort, even if these gang members *should* be taken off the streets.

PS: I rarely dance and if you have ever seen me dance you'd know why.
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Danny, 30 Jun 2011 @ 10:01am

On the real?
Let me get this straight. These folks are having a hard time getting rid of the Mongols on charges that range from racketeering, rape, assault of all sorts, and murder. So to deal a significant blow they are going to try to get them on infringement?

This goes to show why they haven't broken those gangs up yet. And it also shows the backwards thinking of our government to think that chages of infringement will succeed where murder charges have failed.

Considering that some of the members have no problem killing and (possibly more dangerous) dying for their club so you really think infringement charges are gonna stop them from rocking their logos and colors? We're talking about people who brag about being 1%ers (as in the 1% of motorcycle clubs that engage in illegal activities) folks.
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Gwiz (profile), 30 Jun 2011 @ 10:04am

Re: Re: Hassle
[Offtopic]: btr1701, I really enjoy your insightful comments, especially since they are from the view of a government insider.

I hope Mike gets around to asking you to do a Favorites of the Week post, because I know I would personally find it to be extremely interesting.
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Hulser (profile), 30 Jun 2011 @ 10:11am

Re: Re: Re:
kinda like Capone, the knew he was behind all of those crimes, but they couldn't pin anything on him because he always used lackeys that were too afraid of him to point fingers. So the best they were able to do was tax evasion...I guarantee you that if they didn't have tax evasion to go on, they would have cooked something else up.

I think there's a big difference between Al Capone's case and this one. Tax evasion really is illegal. The government didn't "cook up" a conviction of Capone. He evaded taxes and was convicted and punished. It's just that tax evasion was easier to prove than his other criminal activities. But with the Mongols, the government is corrupting trademark law because their goals have nothing to do with consumer protection.
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Benjamin (profile), 30 Jun 2011 @ 10:35am

Prior art maybe?
I'm not a Trademark lawyer, but if another party can show that the mark was used in "commerce" prior to a trademark being granted, isn't that grounds for action?

...You know, like when the Mongols Motorcycle Club used it prior to the US Government holding the trademark (an absurd situation if there ever was one).

Similarly, is there no one in Mongolia who would contest this trademark?
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John Doe, 30 Jun 2011 @ 10:46am

Let me get this straight
including murder, robbery, racketeering, extortion, money laundering, gun trafficking and drug dealing

The government can't stop the guys from doing the real crimes you mentioned and they thing the Mongols are going to care about a little trademark infringement? That will be all the more reason for them to fly the colors.
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Overcast (profile), 30 Jun 2011 @ 10:46am

Trying their hand to see how much control IP laws give them. Just wait - more to come.
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John Doe, 30 Jun 2011 @ 10:54am

Re: Public Domain?
Very good question, but even if the Mongols trademark is in the public domain now, I wouldn't recommend using it. :)
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Rikuo (profile), 30 Jun 2011 @ 11:40am

Sorry Mike, something I don't understand from the article, about the whole Government seizing someone's trademark. Am I right in saying that, in a civil suit between two parties, there are occasions when the Government can seize the trademark and hold it until the case is finished?
What I don't understand is when you mentioned they apparently plan to take the jackets off the gang members by claiming infringement. How can the Government claim infringement over a trademark it seizes? I can understand if you were to suddenly sell coffee mugs with the President's Eagle seal on it, that would be a government trademark as far as I know. How could the Government claim harm over infringement here, unless they want to admit that they are in commerce for a criminal gang?
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aldestrawk (profile), 30 Jun 2011 @ 1:10pm

Re:
The government did think outside the box here. The trouble is they haven't though it through. Let's suppose the court allows them to maintain their seizure of the trademark. According to trademark law the government will have to actually use the trademark or they will lose it after a period of time. I don't believe the federal government intends to use it, although, it's fun to imagine them using the logo as part of the uniform for federal agents involved in VIPR checkpoints on roadways.
Enforcement of their ownership of the trademark will turn trademark law upside down. Here you have a group of people that, I am fairly certain, have exclusively used this logo for a number of years. The courts would have to throw all the normal considerations of previous usage by the motorcycle gang and usage, or rather non-usage, by the current trademark holder (the feds) out the window. Additionally, trademark law would not prevent any gang members from identifying themselves as Mongols. It would also be a stretch to say they couldn't wear the logo, although they made the clothing themselves and were not selling it. Maybe we can all agree that the planet would be better off without the Mongols motorcycle gang's existence. However, I don't agree the goal of eliminating them justifies the twisting of law into an ugly distortion. Why can't federal law enforcement be content with prosecuting them for real crimes. In prison they won't be wearing that logo and a condition of parole could be the prohibition of associating with gang members and the wearing of gang identifying clothing.
A similar tactic is using gang injunctions to prevent gang members from associating and restricting their movement within a fairly large "zone". It can also include restrictions on wearing gang clothing within that zone. This goes against the grain of the U.S. constitution including the 1st amendment (freedom of assembly). This is the equivalent of imposing parole restrictions on a convict but without the necessity of requiring someone to be convicted of a crime. Gangs are an ugly reality in many areas. People who are affected by them see any attempt to control or eliminate them as justified. Once, in a comment on a gang injunction article in the S.F. Chronicle (the newspaper referenced for this story), I suggested that gangs should form Political Action Committees (PACs) to defeat any injunctions. I am not really sure that would work but I am sure gangs aren't smart enough to do that. At any rate, my comment was greatly despised.
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BeeAitch (profile), 30 Jun 2011 @ 1:16pm

Re:
This was my first thought as well. Are they really going to quit wearing colors because it's a trademark infringement?
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Mike Masnick (profile), 30 Jun 2011 @ 2:01pm

Re: Re: Re: Hassle
I hope Mike gets around to asking you to do a Favorites of the Week post, because I know I would personally find it to be extremely interesting

He's been asked. So far, he hasn't been able to do it due to timing. Hopefully in the future.
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btr1701 (profile), 30 Jun 2011 @ 3:22pm

Re: Re: Re: Hassle
> I hope Mike gets around to asking you to do
> a Favorites of the Week post

Mike did ask, but I'm traveling like crazy these days and would basically have to do it from my iPhone. I'm not sure if that would even be possible.

Once things slow down and I get back home, I'll do one.
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Deirdre (profile), 30 Jun 2011 @ 3:59pm

I have been trying to remember which hate group was civilly sued on constitutional grounds and ended up having to forfeit their property including their name.

Different situation from that described in the article but a creative use of damages to strike at the identity of the offending group.
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dwg, 1 Jul 2011 @ 1:30pm

What about...
...police motorcycle gangs? Blue Vikings or whatever the fuck they were called...could they be liable for using a mark that's confusingly similar to some other gang's mark that the government's registered/seized?

If so, I heartily approve of all of the above. If not, then not. I'd love to see cops ripping off other cops' biker jackets. Oh, wait--there's a website for that.
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Gene Cavanaugh (profile), 1 Jul 2011 @ 2:12pm

Mongols TM
"...remaining members of the Mongols claimed that they collectively owned the logo, and the government couldn't just seize it. The government, in turn, claims that the trademark is actually held by just one guy, who has already pleaded guilty to various charges."
First, a TM cannot be held by "collective ownership", it would have to be an entity (the "Mongols?").
Second, if the "one guy" is guilty of "stuff", what does that have to do with trademark?
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Ty, 18 Oct 2011 @ 2:32pm

Feds Out of Control
The taking of the "logo" of the mongols is one of the most stupid, ignorant and offensive ways of combating gang violence I have personally heard of yet. This means, if we are walking down the street and we are wearing something that has words on it that the police or U.S. government do not like, they can just confiscate it. WRONG. We must resist this kind of totalitarian rule. I thought we still had a couple of constitutional rights left. Guess I was wrong. WAKE THE F**K UP AMERICANS. Start fighting this kind of totalitarian enactments. A right not exercised is a right lost. As far as that goes. Start open carrying your handguns where it is legal. If it is not legal in your state PROTEST PROTEST PROTEST!!!!!!!!
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