Mongols Trademark Seizure Update

This man has First Amendment rights too

This man has First Amendment rights too

UPDATED with copy of Order on Oct. 29.

On Oct. 21, we reported that the Department of Justice sought an order seizing the Mongols Motorcycle Club’s trademark. See DOJ Seeks Seizure of Motorcycle Club Trademark.

It seems that the Department of Justice was, at least initially, successful.

The judge initially issued an injunction Tuesday, but that order was limited to barring the sale or distribution of the logo. New language was added, saying the gang members and their affiliates “shall surrender for seizure all products, clothing, vehicles, motorcycles … or other materials bearing the Mongols trademark, upon presentation of a copy of this order.”

I haven’t seen the written order, but either the news outlets got it wrong, or the judge went far beyond any boundaries of sanity in granting it. Only a handful of individuals are under indictment. It might be proper for the judge to order those individuals to surrender their clothing bearing the insignia, but how could such an order lawfully apply to their “affiliates?”

Assistant U.S. Attorney Steven Welk said, “If a Mongol is wearing a vest or jacket bearing the Mongols patch, that item is pursuant to seizure based on this order.” (source)

Either Welk has a fundamental misunderstanding of trademark law, or the order is terribly overreaching and seems to misunderstand the language of the order. The government could wind up in control of the Mongols’ trademark. Such moves are not unprecedented. For a brief period of time, the federal government was in control of the world-famous Mustang Ranch and its intellectual property assets after a seizure and forfeiture order. However, ownership of a trademark does not give the mark holder the right to run around seizing lawfully-licensed and purchased products. Ownership of a trademark will give the holder the right to seize unlawfully produced goods bearing the mark, but there is no ex-post-facto revocation of rights provision in the Lanham Act.

Most importantly, if such an order is allowed to stand, it would be a serious First Amendment violation. Only 79 members of the Mongols are under indictment. Under the law, all the rest of the Mongols are law-abiding citizens (and if the government disagrees, then they should seek more indictments). These citizens have the right to freely associate in a group and to display outward symbols of membership in that group. The government can’t ban confederate flags, swastikas, or klan robes, and it sure as hell can’t ban the display of the Mongols’ logo.

UPDATE: Mr. Welk might have a bigger problem than he realizes. According to the USPTO website, the Mongols don’t even own the trademark — it was assigned to Shotgun Productions, LLC in March of this year. (source)

ADDITIONAL UPDATE: It appears that Mr. Welk is seeking a clarification of the Order that would indeed give law enforcement officers the broad authority he claims they already have.

Special thanks to Blawg Review for tipping me off to the assignment issue.

9 Responses to Mongols Trademark Seizure Update

  1. jerry s. winkle says:

    The u.s. patenet $ trademark office has on file available for public viewing a report on the national information infrastructure released in september of 1995. the late Ron Brown secretary of trade and commerce was one of the chief author’s of the report which clearly documents a scenario which is presently occuring with respect to the mongols motorcycle club and similar organizations.
    included in the report is a statement made by Thomas jefferson and i Quote
    ” I am not a advocate for frequent changes in laws and constitutions. But laws and constitutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the chance of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him a boy…….”

  2. JERRY S. WINKLE says:

    The federal trade commision with the adhoc information infrastructure task force has seemingly set the protocol for the ensuing action against the mongol’s motorcycle club. the commision along with the u.s. patent and trade office have suddenly been relegated the duty to interpret and enforce warrant’s authorized by one circuit court majestrate not the usual three. there must be a electronic court record on file in the pacer \ racer database which would offer written opinion’s of the two majestrates who are in a state of detente, after all it is election year. some where the operation of law would involve an executive branch agency to apprpriate the resource’s neccesary to gain public support using all forms of media available.
    the fcc must play a role in this operation if consideration is given to the fact that the advertisement and display of trademarks and intellectual property originating in the u.s.a. would be more of a domestic affair than a international affair. which would clearly fall under the scope od domestic survellance.

  3. jerry s. winkle says:

    It is evident that HR3204 and it’s companion bill S1611 will be an issue that will be brought forth into this situation!

  4. jerry s. winkle says:

    the doj is already throwing the motorcycle club name around town like they own it. next they will be auctioning it. correct me if i am wrong ,the property from the black rain conflict with mongol nation be placed upon the auction block to assist in recovery of taxpayer dollar’s used in the action? the fcc does the u.s. marshall’s do as well. FCC AUCTION’S AIR EVERY DAY AS WELL AS THE FRN’S WHICH ARE A TYPE OF TRADEMARK AND COPYRIGHT COMBINED 1 FRN 1 NAME, NO DUPLICATE’S. I DON’T THINK I WOULD BID ON THAT AUCTION BUT I’M SURE THAT IF IT IS HELD THE MONGOL NATION WILL RECOVER THEIR ASSET’S SEIZED.

  5. […] “The government can’t ban confederate flags, swastikas, or klan robes, and it sure as hell can’t ban the display of the Mongols’ logo.” – Marc J. Randazza […]

  6. […] “The government can’t ban confederate flags, swastikas, or klan robes, and it sure as hell can’t ban the display of the Mongols’ logo.” – Marc J. Randazza […]

  7. […] crackdown against a notorious motorcycle gang, the Mongols, a California district court judge has decided to strip away the gang’s right to use its registered trademark name. The forfeiture of the […]

  8. […] “The government can’t ban confederate flags, swastikas, or klan robes, and it sure as hell can’t ban the display of the Mongols’ logo.” – Marc J. Randazza […]

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