Bikers fight to keep their colors
Posted by Ben Baker on Sep 4th 2016
| A federal lawsuit to strip the Devils Disciples MC of their distinctive vest patches is over. |
| Federal prosecutors dropped the lawsuit Aug. 30. |
| “These trademark cases are important to the clubs, whose free association has been threatened by the attempts by (prosecutors) to enjoin use of their membership (marks) by non-indicted persons,” attorney Fritz Clapp, a former longtime Sacramento resident, told McClatchy News Service. |
| According to McClatchy, which broke the news, the feds said they found the copyright owner of the patch and he'd not been charged with any crimes. |
| “Generally, the government can only criminally forfeit property, under an applicable forfeiture statute, in which a defendant in a criminal case has an ownership interest,” Assistant U.S. Attorney Linda Aouate said. |
| The fight is not over. One percenter motorcycle clubs are still fighting to keep their colors, the patch that appears on MC vests. |
| Colors belong to more than just the 1%ers. Christian biker groups have back patches. Law enforcement MC clubs have colors. |
| But the storied history of the 1%ers and their encounters with the law have spurred some prosecutors to try and take the patches. The Mongols are the most recent, but not the only, target of this attempt to rein them in through seizing the patches. |
| The Wall Street Journal reported "Federal prosecutors are trying a novel legal tactic to strike at the heart of what they consider a notorious outlaw motorcycle gang: using trademark law to take away its treasured logo." |
| The Mongols fought back. “They’re trying to destroy the right of men to associate and indicate their association,” said Joe Yanny, an attorney representing the Mongols. “It’s absolutely ridiculous.” |
| We reached out to the Mongols to get a direct comment for this story, but have not yet heard back. The Mongols have until Nov. 10 to respond to the latest government filing in their case. |
| The Aging Rebel had quite a bit to say about the federal case back in 2014. |
| “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," said former US attorney Thomas O'Brien. More details here. |
| WHAT DOES IT MEAN? |
| If the federal government succeeds and strips the trademark from the Mongols, that means the government owns it. If the government owns the trademark, then it means the trademark is then owned by every US citizen. It is public property. Does that mean anyone could then wear the Mongols MC patch? Legal experts come down on all sides of this. |
| Disinterested lawyers are mostly saying this is a serious case of government overreach. |
| David Post writes for The Washington Post, "Putting aside some (very serious) First Amendment questions, the notion of seizing a trademark strikes me as at best peculiar and at worst borderline incoherent. Notice: we’re not talking about whether the government can seize the tangible goods (t-shirts, flags, etc.) on which the trademarked logo appears – that’s a common occurrence in the law, and those goods are clearly forfeitable property. But here, the government is attempting to seize the intangible trademark rights – the 'intellectual property.' And that’s where they lose me." |
| TRADEMARK PROTECTION |
| Under US and International copyright law, the act of creating a piece of art, like a MC patch, also creates a copyright. However, copyright is time limited. To add even more legal protection, MCs sometimes trademark their patches. Trademarks must be protected, up to and including filing lawsuits when someone else uses the image or slogan without permission. |
| Hells Angels sued Dillards and rapper Young Jeezy for using the club's trademarked skull without permission. That case was settled but the details were sealed. |