There’s a possibility that a group of Assistant United States Attorneys plan to hop on their chopped hogs and take to the road, their rep ties flapping in the wind. And should they do so while wearing the colors of the Mongols Motorcycle Club, the enforcement of trademark against them might raise a hoary issue.
In 2008, the government filed RICO, or racketeering, charges against certain members of the Mongols Motorcycle Club. In the process, the Justice Department also sought forfeiture of the club’s trademark in its logo, a distinctive design that combined words and images to signify membership in the group.
After members were indicted, the Justice Department obtained a pretrial order authorizing confiscation of items bearing the Mongols’ logo.
The criminal forfeiture of a trademark raises some very peculiar issues, since forfeiture generally applies to physical things while a trademark is a legal right, not the sort of thing you can put in the trunk of a patrol car. While forfeiture of a mark may preclude its legal enforcement against others, it has nothing to do with the right to seize items bearing the mark. Yet, that’s exactly what the United States Attorney authorized.
The U.S. attorney in Los Angeles declared that any officer who saw any club member “wearing his patch” could “literally take the jacket right off his back.” Officers did just that, confiscating jackets, belts, shirts, and other items displaying all or part of the logo from club members and supporters — even though they were not charged with any crime.
The San Diego chapter of the ACLU brought suit to end the confiscation.
The court’s rulings also schooled the government in bedrock principles of trademark and First Amendment law, calling the government’s theory “creative to a fault.” Whatever crimes certain club members may have committed, the government misused its power when it violated the rights of others to express their identity as club members or supporters.
For the government, the Mongol colors represented the gang they were trying to break, and so eliminating the symbol was part of its effort to eradicate the club. But intentions aside, don’t these individuals have a First Amendment right to express themselves, to associate, to wear whatever symbols and words they want to wear?
A trademark is a unique form of property: It does not exist apart from the business or entity it symbolizes, and it cannot be transferred independent of that business or entity. Because the government has no right to assume the identity of the Mongols Motorcycle Club, it cannot seize the club’s trademark.
But what of negative use of trademark, not that the government has a right to assume the identity of the Mongols, whether to clothe its easy-riding AUSA or prevent the local Hell’s Angels chapter from selling Mongols paraphernalia, but to prevent the Mongols from utilizing its trademark?
Even if the government could take those rights, they confer no power to confiscate items bearing the trademark. A trademark does not confer an absolute right to prohibit all use of the mark. It only authorizes the holder to prevent purely commercial use of the trademark that creates confusion as to the origin of goods or services.
Ripping a cool jacket off a biker’s back is an entirely different issue than the rights inherent in a trademark. Even if the government could forfeit the mark and take it as its own, their remedy for someone violating their trademark would be suit, not seizure. The government still doesn’t get to send its enforcers out on the road to seize belts from otherwise law-abiding motorcycle enthusiasts.
But they’re a motorcycle gang, you say? And they’re up to their eyeballs in the RICO, not to mention bad guests at parties?
Trademark issues aside, the First Amendment prohibits the government from censoring the right of people to express their membership in or support for an association. It also prohibits the government from targeting the content or viewpoint of speech associated with a particular group, regardless of what that group stands for.
The First Amendment protects all of us or none of us. And that includes the Mongols.