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Mongols motorcycle club may lose right to use its logo

Mongols motorcycle club may lose right to use its logo

Jury in racketeering case voted to strip the club of its trademarked logo, but judge will rule on 1st Amendment implications

https://youtu.be/1iHcpbTI6OQ

A jury that convicted the Mongols motorcycle club, also known as Mongols Nation, of racketeering also decided that the Mongols should be stripped of their trademark as part of their punishment.

U.S. District Judge David Carter declined immediate forfeiture and instead set up a hearing for next month to address the First Amendment implications of this verdict.

Fox News reports:

In a first-of-its-kind verdict Friday, a federal jury ruled the Mongols motorcycle gang should be stripped of its trademarked logo.

The jury in U.S. District Court in Santa Ana, Calif., previously found the Mongol Nation guilty of racketeering and conspiracy. The verdict was the second phase of a trial that focused on forfeiture of assets and it caps a decade-long quest by prosecutors to dismantle the gang claimed to be responsible for drug dealing and murder.

. . . . Authorities claim the group’s logo — a Genghis Khan-like figure with sunglasses and a ponytail riding a motorcycle, which is worn on the back of the Mongols members’ leather vests — is directly linked to the club’s crimes.

. . . . Gang members were “empowered by these symbols that they wear like armor,” Assistant U.S. Attorney Steve Welk said.

U.S. District Judge David O. Carter declined to immediately order the logos forfeited and set a hearing next month to address possible First Amendment issues raised by the verdict.

Given that my knowledge base on biker clubs or gangs is limited to the Sons of Anarchy television show, I had to do a bit of research on the Mongols MC and found the following History Channel Gangland docuseries episode.

Not exactly the boys next door for most of us, but the question here isn’t whether or not we approve of or like these bikers but whether or not it is acceptable or even Constitutional to strip them of their trademarked logo as punishment for a racketeering conviction.

The LA Times reports:

The government’s pursuit of the trademarks is a novel legal strategy, based on the idea that control of the trademarks would not only cut off the stream of money that Mongols leaders collect from selling patches and other merchandise to members but would also empower government officials to stop Mongols members from wearing any clothing with the potent Mongol image.

An effort to bar Mongols members from displaying the logo, trademark experts and constitutional scholars said, would run the risk of crossing constitutional lines set out by the 1st Amendment, which protects people’s rights to associate freely and express themselves.

“Just because you’re found to be a criminal, you don’t lose your 1st Amendment rights,” said Jeffrey Pearlman, interim director of the Intellectual Property & Technology Law Clinic at USC Gould School of Law. “What the government seems to be trying to do is prevent these people from associating with each other.”

But Erwin Chemerinsky, dean of the law school at UC Berkeley, said the government likely has the law on its side.

He pointed to a 1993 case in which a divided U.S. Supreme Court ruled the government was within its rights when it seized and destroyed all the contents in adult bookstores owned by a man who had been convicted under the same federal racketeering laws used in the Mongols case.

“I think the government’s action seizing speech should violate the First Amendment, but [the earlier case] will make the First Amendment claim difficult,” he wrote in an email.

In an interesting twist to the case, former pro-wrestler and Minnesota Governor Jesse Ventura was a Mongol back in the ’70s, and he testified at the trial that the Mongols are not a criminal gang. The difference between a motorcycle “gang” and “club” seems to be open to interpretation, and the attorney challenging the verdict is arguing, in part, that the Mongols are a club, not a gang.

The AP reports:

Prosecutors wouldn’t comment Friday on what would happen going forward. But defense lawyer Joseph Yanny questioned whether the judge would actually issue such an order and said the novel theory was ill-conceived.

“If you were a law enforcement officer and you knew there was a gang out there and they had emblems on that identifies who they are, why in God’s name would you want to take them off of them so you couldn’t know who they were?” Yanny said. “It’s the stupidest thing.”

Yanny, who is challenging the convictions, argued at trial that the organization was a club, not a gang, that didn’t tolerate criminal activity. He said the government targeted the group because of its large Mexican-American population and turned the crimes of some into a “group conviction.”

In November, former pro wrestler and Minnesota Gov. Jesse Ventura testified for the defense, denying the Mongols were a criminal gang. Ventura said he neither committed crimes nor was told to do so when he was a Mongol in the 1970s.

But jurors found the Mongols were a criminal enterprise responsible for murder, attempted murder and drug dealing.

Jazz over at Hot Air asks some interesting questions:

The way the ruling is being described implies that cops who see members riding around wearing jackets with the Mongol colors on them will be able to pull them over and forcibly take their jackets away. Despite all the criminal activity they engage in, those not in prison still have the same civil rights as anyone else and are entitled to free speech, right? (I would say the same for the Bloods and the Crips.)

Unless someone else takes over the copyright of the image, this decision shouldn’t force them to stop wearing the badge, should it? And even if someone does obtain the copyright, that doesn’t mean they couldn’t wear it. They just wouldn’t be able to continue selling Mongols Nation paraphernalia (is that seriously something that happens?) and profiting from it.

The Mongols currently hold a trademark on their logo.  Click here for some fun facts on trademark v. copyright.

This effort to strip the Mongols of their trademark began back in 2008.   You can read the 2008 U. S. District Attorney’s press release here, and you can read the Mongols’ response here.

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Comments

“empowered by these symbols that they wear like armor”

This is meaningless. An absurdity, like accusing someone of “hiding behind the Fifth Amendment.”

The article is needlessly confusing, because the term “strip” sounds like it means the trademark registration would be cancelled. This raises the obvious question of how this could possibly prevent members from continuing to use the logo without trademark protection. But that’s not what it means. The correct word to use here is “confiscate” or “forfeit”. In other words, the trademark would continue to be registered, but it would be owned by the government, which could therefore prevent anyone from using it.

Except that I don’t see how that would work either. Trademarks are not like copyrights. Copyright law exists to protect the holder’s income, but a holder can choose to do without the income and use the copyright to keep the work off the market. That’s because the law exists for their benefit.

The purpose of trademark law, however, is not to protect the holder, but the consumer. Thus one cannot protect a copyright one is not using, and the key question in any suit is whether there is a possibility of confusion. Let’s say the government confiscates the trademark and then tries to sue someone for wearing the logo on a jacket; what exactly would the government be arguing? That someone seeing this person would erroneously think he represented the government?! I don’t think so.

    “Stripped” just means they can no longer use their trademarked logo; they are stripped of their ability to use it. No need to be needlessly pedantic.

      Yes, but you see the confusion here in the comment section, by people who assume (as I did at first) that it means the protection would be cancelled, and therefore wonder how it could possibly be meant to work.

    Ragspierre in reply to Milhouse. | January 12, 2019 at 9:06 pm

    “The purpose of trademark law, however, is not to protect the holder, but the consumer.”

    Nope. Just like all intellectual property, the HOLDER of the property right is the prime beneficiary.

    You’ll NEVER see a “consumer” file for a trademark, defend a trademark, or use a trademark. Note “consumer”.

    “Thus one cannot protect a copyright [I assume you meant “trademark”] one is not using, and the key question in any suit is whether there is a possibility of confusion.”

    Sure they can. They hold a property right in the mark, and nobody else can use it commercially.

    Now, the larger issue here is whether the Feds can prohibit someone from giving another a Mogul patch, AND whether they can prohibit it from being worn.

    As to the first, I’d day no. Anybody can give me an embroidered Micky Mouse patch. They just can’t sell them unless they hold a license from Disney.

    As to the second, again, “No”. Plus, I can’t see the LEOs of the western states finding it worth their while to police the wearing of patches, tattoos, or someone making stupid contortions of their fingers. I expect they have LOTS better things to address.

      JusticeDelivered in reply to Ragspierre. | January 12, 2019 at 11:15 pm

      A trademark may be used to make fun of or criticize those who own it. That is a lesson numerous trademark owners have learned the hard way.

      Milhouse in reply to Ragspierre. | January 13, 2019 at 12:09 am

      Yes, I did mean “trademark”. And what I wrote is correct; the sole purpose of trademark law is to protect consumers, not to protect the holder. Which is why it is generally lawful to use someone’s trademark in ways that do not harm consumers. The test is whether consumers will be misled into buying a product that they would not have bought had they known it was not made by the trademark holder.

      This is why a trademark that is not being used, and therefore that consumers are not looking for, is no longer enforceable. Ditto for a trademark that has become generic, so that consumers no longer identify it with the holder.

      Therefore even if the government confiscates the mark, it seems to me that to enforce it it would have to allege that the people using it are misleading consumers into thinking they’re dealing with the government, which is just not plausible.

      (PS: Yes, I’m familiar with the newfangled concept of “trademark dilution”, which goes against the principle I outlined above. It’s a bastard concept, precisely for that reason. It’s not consistent with the whole point of trademark law; it’s an alien graft, bolted on by brute force, and is best regarded as a separate and unrelated law which cannot be used to draw conclusions about trademark law as a whole.)

        Ragspierre in reply to Milhouse. | January 13, 2019 at 1:13 pm

        “And what I wrote is correct; the sole purpose of trademark law is to protect consumers, not to protect the holder.”

        Which is both partially true (in the sense that trademark law uses that as a public-policy fig leaf) and completely irrational.

        Name a trademark suit brought by “consumers”.

        Name a trademark application brought by “consumers”.

        You see, your contention is irrational on its face. Businesses do not altruistically “protect consumers from confusion”. What they DO is protect intellectually property they perceive as giving them a competitive advantage.

        Trademark law is about BRANDING, which is a very important aspect of both marketing and competitive advantage.

          Milhouse in reply to Ragspierre. | January 13, 2019 at 2:57 pm

          Consumers are a diffuse group, none of whom is likely to be harmed enough by a trademark infringer for it to be worth bringing suit; the trademark holder suffers enough injury to make it worth defending his mark. Also defrauded consumers are less likely to find out about an infringement than the holder is. So it makes sense for the holder to be the one bringing suit. Of course he’s not being altruistic; but the law does not exist for his benefit. (The alternative would be class actions, but first, they didn’t exist when trademark law began, and second, they’re not necessary here, since the holder has sufficient interest in pursuing any action.)

          Ragspierre in reply to Ragspierre. | January 13, 2019 at 3:14 pm

          More irrational crap.

          “…the trademark holder suffers enough injury to make it worth defending his mark.”

          That happens to be about the only truth-nugget you could manage. Of course is contradicts you and supports what I’ve said.

      Ragspierre in reply to Ragspierre. | January 13, 2019 at 1:19 pm

      Just a note in passing…

      The haters and T-rump cultists on these threads have amassed a down-vote total that is roughly in line with any Ragspierre comment.

      Not in any way connected with the merits of what I said, and not supported by a contending comment.

      Just the usual hate and stupid.

        Rags, don’t sweat the down thumbs. Yours was a good comment, and you know it (notice all the upvotes? You don’t get those on some comments). You’ve built up some ill-will here that will take time to overcome, so just shrug off the downvotes and know that in a couple weeks, they won’t even be visible on the site. 🙂 Keep being smart and great because that’s what we all love.

        By the way, try to avoid this whole I’m a victim of “haters” and “cultists” thing. It’s weird and not at all accurate, and kind of reflects exactly why you get downvoted. Surely, you can understand that calling people “haters” and “T-rump cultists” is not the most effective way to garner goodwill?

        You’ve earned a lot of the bile that comes your way, and that includes downvotes (again, that are only visible for a short time on this site). As a self-proclaimed bon vivant, you can clearly rise above this rabble and shrug off any cynicism about you with the flair of a self-assured Southern gentleman. That’s coming across as sarcastic, but I actually mean it. Don’t sweat the small stuff, Rags. Your comment was sound (and correct) and appreciated.

A trademark doesn’t give one the right to display a symbol, it gives one the ability to stop someone else from using it. So, if the Mongols want to prevent some get-rich-quick types from selling counterfeit “Mongols” t-shirts on eBay, they won’t be able to use the ponderous mechanisms of the law to do so; they’ll have to use threats, intimidation, and business-as-usual to do the same thing. Much as they probably do now.

    Milhouse in reply to tom_swift. | January 13, 2019 at 12:10 am

    Yes, but the idea seems to be that the government will own the mark, and therefore will be able to stop the former owners from using it.

And other than a competing MC or 1%er, who would even think it would be a good idea to infringe on their trademark. Not like many of us would be interested in waking up and finding a few of them standing over you in your bedroom….

    Well, I’m sure the other biker clubs are watching this carefully and do not want the Mongols to lose their trademark. Once a landmark case like this is on the books, the government will go after every biker clubs’s logos. This is a “first they came for the Mongols” thing for MCs, and I’m sure they know it.

      JusticeDelivered in reply to Fuzzy Slippers. | January 12, 2019 at 8:40 pm

      The problem goes far beyond biker clubs, it is inevitable that the government would start sizing others trademarks, copyrights and patents. This is a very slippery slope.

      Not Not only MCs.

      My gun club has a logo. Is there any doubt that Democrats would prohibit the display of such a terrorist symbol if it had the authority?

        Milhouse in reply to mariner. | January 13, 2019 at 2:59 pm

        If your club turned to crime, and was found by a jury to be not a social club but a criminal enterprise, then it could indeed have its assets confiscated, including its trademark, which the government could sell to someone else. Why would a trademark be different from any other asset?

          I think you’ve hit the nail on the head here, Milhouse. Is a trademark an “asset”? And if so and no one else owns that trademark, why couldn’t the Mongols just keep using their logo even with the trademark rescinded?

          Also, it’s worth noting that the question is whether or not their ability to use their logo is a First Amendment right. If it is, no court can take it away (and make it stick). Our Constitution doesn’t guarantee the right to vote, so that can be taken away from felons, but it does guarantee a right to free speech (and as later defined by SCOTUS, freedom of expression).

          Rags has this right.

But…but…but…

Islam is a religion of Peace, but if some of them go Jihadi and commit acts of terror killing scores or hundreds of people, we cannot blame the entire religion, right?

But if a few members of a motorcycle club engage in the sale of drugs and/or violence, EVERY member of the club must be admonished and disenfranchised?

Double Standard, anyone?

    JusticeDelivered in reply to Elric. | January 13, 2019 at 1:41 pm

    How many wars have been started by by just a few people? When that happens, do just those involved in the start suffer, or do their people suffer collectively?

In China has eight be getting a visit from a special white van, which is equipped to harvest organs needed by party members.

Anybody that would knowingly use the logo of any biker club without actually being a member of that club would have to be crazy. That is a guaranteed ticket to a beat-down.

I love how the club will be ‘stripped’ of their logo, like somehow the symbol will cease to exist, vanish off hundreds of leather vests, and nobody will be able to draw one.

Federal elected officials (the real Mongols) just lost their trademark?

Didn’t they try this with the Red Skins?

    Milhouse in reply to mailman. | January 13, 2019 at 10:32 am

    No, they didn’t.

    Stripping the Mongols of their copyrighted logo is being presented as a punishment for their racketeering conviction/s. The idea is that the government can ensure Mongol “colors” are never worn or seen or used in any way by the Mongols.

    I doubt this will hold up even in district court, but if it gets to the Supremes, it’s done. You can’t remove Constitutional guarantees, like freedom of speech, as punishment for a crime. The one exception is always the Second Amendment, but that is because voters, legislators, judges, and pols have agreed that some people should have not have guns.

    If the people back pulling the Mongols’ logo, we’re in serious trouble because as others have noted, this is a slippery slope. The bright side, though, is that I don’t believe the Supremes will allow this (if the case goes that far, and it should if it’s somehow, crazily upheld on its way to the Supremes).

How is this silly idea going to enforced? Anyone care to imagine the scenario of a gang member being stopped at asked to remove his colors? It will not end well. I fail to see ANY positive result for this.

DouglasJBender | January 13, 2019 at 8:12 am

The Mongols’ Founder and Leader:

https://youtu.be/8H3luguo8Nw .

It’s not a symbol, logo, or trademark. It is a uniform of a violent group. They wear that uniform partially to intimidate victims and rivals.

    Fair enough, but didn’t the left say the same thing about “Don’t Tread on Me” flags, that we TeaPartiers were terrorists?

    For me, the answer is always “no more government.” I don’t want to be “protected” from the Mongols’ logo . . . because my logo will certainly be next. Personally, I’d rather that criminal gangs like M-13 were easily identifiable by their colors and tats; all the easier for law enforcement to find and stop their violent and criminal enterprises. But that’s just me.

Gee, I wonder if that theory would work for MS13, or maybe Antifa of BLM

    So we sell our souls for a Pyrrhic victory and get played every single time. How would this play out? Sure, let’s go after M-13, Antifa, whatever . . . and in the blink of an eye, it’s the Gadsden flag and the American flag and MAGA hats. Don’t ever give an inch of freedom to “get” others; the left will ALWAYS turn it on us in the end, and they’d be stupid not to. We are lambs to the slaughter: “Yeah, take our Constitutional rights to get that guy!”

    Duuuude. That guy was never the target, we are. Do you really think the left wants to pull the logo of an Hispanic biker voting bloc? Um, no. They want us to support their doing so because that sets them up to come after us, their real target.

So what are you going to do now? Force the MS13 thugs to remove their tats?

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