Comments on: A novel use of intellectual property law

A novel use of intellectual property law

TedW — Fri, 21 Nov 2008 06:26:00 -0800

In a new twist on trademark disputes, the federal goverment wants to confiscate the trademark of the Mongols Motorcycle Club. The Wall Street Journal (among other people)weighs in.

By: fixedgear

fixedgear — Fri, 21 Nov 2008 06:40:48 -0800

Isn't the Hells Angels death's head trademrked? Why hasn't this tactic been used before?

By: delmoi

delmoi — Fri, 21 Nov 2008 06:41:35 -0800

The idea that cops could simply take people's jackets doesn't make any sense. No one controls copyright or trademark the extent that they can simply take people's stuff after it was paid for. That's what the right of first sale is all about with respect to copyright. I'm sure something similar applies to trademarks as well.

By: Sys Rq

Sys Rq — Fri, 21 Nov 2008 06:43:52 -0800

Because if there's anything that makes law enforcement just impossible, it's knowing at a glance who's in which gang. WTF?

By: caddis

caddis — Fri, 21 Nov 2008 06:47:29 -0800

Good luck. Even if they succeed in taking this property, what effect will it have. The Mongols have other means of ensuring that no others use their trademark than the courts and it isn't as if the government could then stop the Mongols from using it. The only way they could do that is if they use it themselves and could then show a likelihood of confusion. I can see it now Dick Cheney and GW in Mongol wear tooling around the country terrorizing the citizens in their retirement. I guess some things never change.

By: Sys Rq

Sys Rq — Fri, 21 Nov 2008 06:53:32 -0800

The Mongols have other means of ensuring that no others use their trademark than the courts

By: grimmelm

grimmelm — Fri, 21 Nov 2008 07:08:47 -0800

Delmoi is right. The injunction isn't just unconstitutional, it's not even authorized by trademark law. No one wearing a Mongols jacket is using the Mongols logo as a trademark. It's just expressive speech, like saying "McDonalds (TM) sucks!" The U.S. Attorney behind the order is also responsible for the Lori Drew prosecution. He's a real cut-down-every-law-in-England kind of guy.

By: srboisvert

srboisvert — Fri, 21 Nov 2008 07:56:38 -0800

If you outlaw Mongol jackets then only outlaws will have Mongols jackets. I could see this actually happening in the EU though.

By: Law Talkin' Guy

Law Talkin' Guy — Fri, 21 Nov 2008 08:01:38 -0800

This is getting completely out of hand. Asset forfeiture is one of the prime examples of how government law enforcement has stopped being a public service and has turned into a for-profit business. The federal government bills asset forfeiture as an effective tool against organized crime. I suppose if it was used in a very limited, circumspect way, it could accomplish that purpose without causing enormous offsetting harms. Unfortunately, it does. Law enforcement agents are frequently overzealous in their efforts to get at the assets of suspected criminals, especially people who they believe to be drug dealers. The fact that the burden of proof is lower in the context of asset forfeiture than in the context of bona fide criminal prosecutions compounds this problem. Before the Civil Asset Forfeiture Reform Act of 2000, the burden of proof was virtually nonexistent. You didn't even have to commit a crime yourself to lose your assets if they were found to have been part of criminal activity. You had to post a cash bond to even challenge the seizure in court. The use of forfeitted assets to fund law enforcement expansion has made this problem snowball and become a civil rights crisis in its own right. Over two billion dollars in assets have been seized by the federal government alone from 1985 to 1995. Some estimates put that figure at four billion. Where does that money go? Right back into law enforcement agencies, of course. If an informer's tip helped lead to the seizure, they sometimes get a cut of the prize, too. The move from seizing tangible assets to intangible assets is just another step in the march in the expansion of government, and law enforcement in particular. The federal government can't possibly use trademark infringement laws as a way of effectively fighting criminal activity. If the people the government is concerned with cared about the law, they wouldn't be committing crimes in the first place. The only purpose I can possibly see in this is to bleed more money out of citizens and into the coffers of the FBI, DEA, ATF, or other law enforcement agencies. Who knows? Once the Mongols aren't an immediate threat (by whatever convenient measure is being used at the moment), maybe the government will license Mongol paraphernalia as a novelty, and make further profits from that.

By: TedW

TedW — Fri, 21 Nov 2008 08:10:52 -0800

If you outlaw Mongol jackets then only outlaws will have Mongols jackets. Actually, I think the Outlaws will have Outlaws patches. Also, fixedgear: HELLS ANGELS and the DEATHHHEAD LOGO ® are trademarks owned by Hells Angels Motorcycle Corporation, registered in the United States and various other countries. Should we find you using any of these we will hunt you down and hurt you. I think the reason this tactic has not been tried before is that as commenters here and in the links are saying, it is unlikely to accomplish what the prosecuting attorney wants it to accomplish.

By: caddis

caddis — Fri, 21 Nov 2008 08:13:46 -0800

Delmoi is right. The injunction isn't just unconstitutional, it's not even authorized by trademark law. This isn't authorized by trademark law, but rather by the asset forfeiture laws. Trademark law and the first sale doctrine don't really apply here.

By: Smedleyman

Smedleyman — Fri, 21 Nov 2008 08:25:17 -0800

Y'know, since the Mongols (et.al) are a known criminal organization, someone wearing the colors would be probable cause to stop them. RICO isn't enough here? Seriously? So they have no problem carrying weapons, drugs, etc, but whoa, they're going to be 'ascared to wear their jackets now? *WTF? face* Just looks like (as said above) further arbitrary expansion of state powers.

By: Skeptic

Skeptic — Fri, 21 Nov 2008 08:35:29 -0800

caddis: The first part is seizing the asset (the trademark). Asset forfeiture laws may indeed apply there. There's no reason whatsoever why intangible assets should not be seized just like tangible assets. But then there's the matter of enforcing ownership of the trademark against the Mongols, which would be governed by trademark law, and would be, as some have already pointed out, rather difficult for a number of both legal and practical reasons. Intellectual property is a relatively arcane area of the law, and, in my experience, even experienced lawyers specialised in other legal areas (such as criminal law) tend to get it all wrong. IMHO, the Feds simply out of their depth (or they hope that the Mongols' lawyers will be similarly ignorant of the nuances of trademark law).

By: filthy light thief

filthy light thief — Fri, 21 Nov 2008 08:41:00 -0800

It's an odd attempt to shut down a gang known for illegal activities. From the WSJ link:

Amid accusations of "crimes and acts of violence" by federal prosecutors, O'Brien says the Mongols' trademark will go to the government. "This trademark is subject to forfeiture," O'Brien said yesterday. "If the court grants our request . . . then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back." (Lucky enforcement officer!)

IANAL, but I think the idea is if it's a Government-controlled logo, you have to get permission to use the logo from the gov't. Just like you can't use the McDonalds logo for your new brand of bacon grease hair gel, you won't be able to use the Mongols logo. So the other (ex)Mongols who weren't caught with the original 79 start a new gang, and have to make a new identity for themselves. I imagine it could slow down drug traffic related to this gang for a while, and cops might be able to look further into the possessions of someone wearing a Mongols patch, and maybe something else. After looking on the Mongols M.C. website, they have a pretty far-spread group, and they go back to 1974, so forming a new identity for that group could also be hard on group moral (or they could just get more pissed at the government).

By: grimmelm

grimmelm — Fri, 21 Nov 2008 08:45:24 -0800

What skeptic said. I have no particular problem with the seizure of the trademark. It's just that owning a trademark doesn't let you do what the government here claims it does. Back when the Mongols owned the trademark, they didn't have a legal right to go around seizing jackets off people's backs, either.

By: localroger

localroger — Fri, 21 Nov 2008 08:48:48 -0800

What skeptic and Grimmelm said, except that I would like to add that this prosecutor is an idiot who needs to leave the prosecuting to people who know wtf they are doing and find another job for himself. I hear McDonald's is hiring.

By: PeterMcDermott

PeterMcDermott — Fri, 21 Nov 2008 09:14:01 -0800

They could really get up to date and change their name to the Down's Syndrome Motorcycle Club, I suppose...

By: TedW

TedW — Fri, 21 Nov 2008 10:02:51 -0800

Apparently the Australian authorities are considering a similar move. For anyone not familiar with biker culture, the patch on a club member's back is his most prized possesion, even more so than his motorcycle. People have been known to kill and die over their colors. For that reason, law enforcement frequently tries to get hold of a set of colors as a trophy of sorts. Last year, for example, a bar frequented by employees at FLETC in Brunswick, GA was displaying a set of Outlaw colors signed by the officers who got them; the Outlaws successfully sued for the return of club property.

By: troybob

troybob — Fri, 21 Nov 2008 10:09:49 -0800

Wow, consider all the legal claims Justin Timberlake can now file for his role in bringing sexy back.

By: TheOnlyCoolTim

TheOnlyCoolTim — Fri, 21 Nov 2008 10:15:56 -0800

This is getting completely out of hand. Asset forfeiture is one of the prime examples of how government law enforcement has stopped being a public service and has turned into a for-profit business. For real. Someone I know was a victim of a crime. Without giving details, the investigation of the crime involved looking at the victim's computer. "You're never seeing that computer again," I said to them when for a while they would remark on how it was annoying to be without computer, "cops don't make money by giving people back their computers." "That's absurd, I'm the victim and I didn't do anything wrong," they would reply. Then of course the case got resolved, as months turned to years calls to the authorities about the computer were met with stonewalling and then just never returned, and my ability for pessimistic prognostication was confirmed.

By: Smedleyman

Smedleyman — Fri, 21 Nov 2008 10:47:53 -0800

"They could really get up to date and change their name..." 'It's Gary Shandling's Gang'

By: infinitewindow

infinitewindow — Fri, 21 Nov 2008 11:23:05 -0800

All I know is if the FBI starts sporting a bottom rocker in California it's on.

By: odinsdream

odinsdream — Fri, 21 Nov 2008 13:56:41 -0800

By: caddis

caddis — Fri, 21 Nov 2008 14:21:00 -0800

skeptic Did you read my first comment? I am well aware of the difficulty in enforcing the trademark rights after forfeiture. My comment was in response to those who seemed confused and implied that the forfeiture itself has something to do with trademark law.

By: Kid Charlemagne

Kid Charlemagne — Fri, 21 Nov 2008 14:50:20 -0800

I hear McDonald's is hiring. What are you trying to do? Scuttle that last profitable sector of our economy? They already have a legal department that tries to patent the sandwich and forgets to periodically dispose of things like letters from an association of plastic and reconstructive surgeons, telling them that their coffee temperature represents an unacceptable hazard.

By: Kid Charlemagne

Kid Charlemagne — Fri, 21 Nov 2008 14:56:05 -0800

And in case you wonder why the Hell's Angels don't use the AVG 3rd Pursuit Group insignia...