Feds going after MC's trademarks
WASHINGTON, DC (August 30, 2016) Federal prosecutors have
dropped a controversial bid to seize the trademark owned by a motorcycle club
called the “Devils Diciples.”
But while the development this week cheers the Midwestern
group and the California-based lawyer who represents them, it does not entirely
slam the brakes on other trademark challenges involving motorcycle clubs fierce
and distinctive logos.
Still in the government’s cross hairs, notably, is the
trademarked logo for the Mongol Nation, a Southern California-based motorcycle
club whose intellectual property has been sought by federal prosecutors since
2008. A federal appellate court is now considering the Mongol Nation case.
“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,” A Mongol attorney said Tuesday.
Members of the Mongols and the Devils Diciples call their
organizations clubs, while law enforcement officials refer to them as gangs or
criminal enterprises.
A Devils Diciples MC member's back patch
Prosecutors began trying to seize the Devils Diciples
trademark as a byproduct of a criminal case that culminated in the February
convictions of six Devils Diciples
leaders on drugs, firearms and other charges.
The prosecutors’ decision now to leave the Devils Diciples’
trademark alone was noted through filings made Monday in federal court in
Detroit. The prosecutors explained in one filing that they had “learned the
identity of the trademark’s owner,” who has not been charged with 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
explained Tuesday.
Most law enforcement asset-forfeiture efforts target conventional property. As part of their
original Devils Diciples case, prosecutors in October 2014 itemized property
they wanted to seize, from Glock handguns and Mossberg shotguns to slot
machines and “two Devils Diciples bandanas.”
At the end of the 32-page property listing, prosecutors
included the club’s trademark.
That trademark , including the deliberately rebellious
spelling, consists of an upper arc framing the words “Devils Diciples,” a
design with two crossed pitchforks over a spoked wheel, and the letters “M.C.”
If prosecutors had prevailed in their trademark-forfeiture
effort, the government could have eventually owned the mark and protected its
property interests, such as by demanding that club members surrender their
treasured designs.
“I was pleased the (prosecutors) easily recognized that the
facts and law favored my client, so that the matter need not be submitted to
the court for decision,” the attorney said.
Over the past eight years, the Mongols trademark cases
established important precedents regarding forfeiture of collective membership
marks and the implications of free speech and association. Fritz Clapp,
intellectual property attorney for the Devils Diciples
In 2013, for instance, the Hells Angels Motorcycle Club sued
the Dillard’s department store chain and a clothing line associated with the
rapper Young Jeezy over the use of the club’s trademarked “Death Head” logo.
The lawsuit, filed in Sacramento federal court, was resolved in a confidential
settlement.
Other motorcycle clubs – ranging from the Thug Nomads and
the Persecuted Souls to the Knights of Fire and the Immortal Soulz – have
likewise secured trademarks for their names or logos, U.S. Patent and Trademark
Office records show .
In the Devils Diciples case, U.S. Attorney Barbara L.
McQuade of the Eastern District of
Michigan said the individual defendants were “responsible for violence and
trafficking in methamphetamine in Macomb County and across the country.”
The still-simmering Mongol Nation case began when then-U.S.
Attorney Thomas O’Brien unveiled in Los Angeles an indictment of 79 Mongols for
a variety of offenses. As part of his campaign, O’Brien sought the Mongols’
trademarks.
“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,” O’Brien
said at the time.
All but two of the original 79 defendants were eventually
convicted. Prosecutors failed, though (link is external), in their attempt to
seize the club’s trademark, an effort they are trying to revive at the 9th U.S.
Circuit Court of Appeals.
“In an audacious, novel move, a select group of the gang –
so-called ‘full-patched’ members – federally registered two marks used by the
gang to identify members and to terrorize enemies,” prosecutors wrote in an
Aug. 8 filing.
The Mongol Nation has until Nov. 10 to respond.
