Best Behavior

With the Waco dust-up just behind us, the Mongols MC is taking unusual steps to reach out to the community ahead of their annual meeting.
The president of a motorcycle club gathering in Excelsior Springs this weekend promises it will be peaceful. In an interview with KMBC 9 News, Mongol Gary tried to ease concerns of violence in the wake of last weekend’s shootings...

Excelsior Springs police said they’ve known about the event for months, have had conversations with Mongols leaders and expect an easy weekend, even though they’ll be preparing for the worst.
If you watch the video, it sounds like the Mongols didn't just grant an interview, they may have sought it out. Talking their plans over with law enforcement is also a little unusual, but the police appear to have appreciated the courtesy.

The Mongols may be on their best behavior in part because they have a court case coming up soon that is of tremendous importance to them.
As part of a plea deal, the club president forfeited rights to the Mongol trademark to the Department of Justice, and a federal judge granted an injunction prohibiting club members from wearing, licensing, selling, or distributing the any materials depicting the Mongolian warrior.

At the time, only Uncle Sam was legally entitled to wear the Mongols' leather vest -- known as a "cut" -- as a jacket without sleeves.

Federal Judge Florence-Marie Cooper ruled that upon presentation of the court's order by police, "defendants and all their agents, servants, employees, family members, and other persons in active participation with them, must surrender all products, clothing, vehicles, motorcycles, books, posters, merchandise, stationery, or other materials bearing the Mongols trademark."

While another judge partially lifted that injunction a few years later, Uncle Sam and the Mongol Nation are headed back to federal court June 2 in Los Angeles to reargue the case and determine who now owns the trademark.

The Mongols mount a First Amendment defense, arguing in court papers the "government's sole purpose in filing the indictment is to crush the Mongols Nation Motorcycle Club by seizing the intellectual rights to the 'Rider' and 'Mongol' marks and thereby quash the Club and its members rights to freedom of expression and association." ... To Davis, the DOJ actions are "unprecedented and unconstitutional." He said the Mongol's insignia is a "collective membership mark" that's "on a par with the Christian cross, the Masonic compass, or the Jewish star."
Maybe the Masonic compass. I don't think the other two are good analogies.

It'll be an interesting case, especially with the Waco shootout so close in memory. It seems like there's something special about the government seizing a trademark. Free speech rights are against the government and not against other citizens. As a result, you have a right to violate a trademark in the sense that the government can't stop you from saying whatever you're going to say. However, the government can enforce someone else's copyright by requiring you to pay damages to them for violating that copyright. In this case, the government would essentially be requiring you to pay damages to them -- making it hard to discern a difference between the civil damages and a fine.

Can the government use this power more broadly to fine you for saying something it doesn't want you to say? Could the government, in principle, decide to seize the copyrights of a book they didn't like, and forbid anyone from printing copies of it? How about a religious book -- various translations or editions of the Bible, say? It's the same Amendment where all these protections cluster, so it seems as if they're all in danger together.

Ordinarily I'd think the Mongols were likely to win a case like this, but after last week it's hard to say. It's a moment at which it may be hard to get the judge to think about the more theoretical questions regarding how the precedent could be more broadly applied, and less about the very public and concrete example of violence.


raven said...

This sounds like something out of an Orwellian police state. It is right up there with levying seizures against inanimate objects for committing crimes.
Do we have even a vestige of a Constitutional Republic left? A trace? A glimmer, seen far off in the haze of a summer storm?

"Just give me one thing, that I can hold onto, to believe in this livin' is a hard way to go"

Eric Blair said...

It is increasingly clear that the Government can do what ever it can get away with, either by fiat or through the courts or the laws it passes.

Doesn't mean such acts can't be disputed, but go read Shale's book on the Great Depression "The Forgotten Man". This behavior has been going on for quite awhile.

Anonymous said...

Should the United States Patent and Trademark Office issue a trademark for "Mafia Insurance Agency," where the actual business of the agency is extortion? How about Best Little Needlehouse in the State of Texas, for a heroin distributor?

If such a mark is issued, should a court order a judgement against an infringer?

Generally, the USPTO is not allowed to issue, and must revoke upon appropriate showing, obscene or scurrilous marks.

Refusal to register is normally limited to obscenities and insults, and from what I have read, there have been less than 10 revocations.

Having a registered trademark means you have the right to go to court, and get a court order to keep others from using your mark, and to require others pay penalties for using your trademark.

However, the courts will not aid those who come to them with "unclean hands," so that a court can and should refuse enforcement of a trademark right in a criminal conspiracy.

The Mongols, as a motorcycle club, are free to file for trademark protection of their logo and sue businesses that, for example, sell T-shirts and caps with their logo. They do not have a right to kill people for using the logo without permission. Period. Ever. They do not have the right to require anybody to wear their logo. They do not have the right to beat people up as a requirement for wearing their logo, or to keep them from wearing their logo, or infringing on their "turf." In the United States, there are no property rights in "turf."

Their attorney should avoid the religious comparisons, or he will very shortly find his gang being compared to the Islamist Perverts, who kill people for drawing Mohammed.


Grim said...

There's a distinction between "We refuse to protect your copyright" -- which might be appropriate, if the government is convinced this is indeed a criminal enterprise -- and seizure of the copyright for the government.

So, yeah, I agree that you can't legally violate the law. What I'm wondering about is the discrete issue of seizing a copyright by the government. That seems like it's a power that could get out of hand fast, and serve as a workaround against several first amendment rights.