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The Mongols: Using Trademark Law to Stop the Violence

They are known as the most violent motorcycle club.  Begun in 1969 by Hispanic Vietnam war veterans who were not allowed into the Hell's Angles, the Mongols, Jesse Ventura's former gang, is a problem for law enforcement and prosecutors. Known as one of the most dangerous criminal enterprises in the United States, federal, state, and local governments have tried undercover agents, infiltration, and throwing the book at the members with charges of murder, money laundering, robbery, and drug trafficking.  A 28-month undercover operations by federal drug agents resulted in 53 guilty pleas, with one former president among the crowd in court.  Still, the law enforcement efforts do not seem to halt the parties, the brawls, the noise, the harassment, and the drugs.


So, the new effort at the federal level is to take legal action to strip the moguls of their trademarked logo. Serge F. Kowalski, "To Crush an Outlaw Biker Club, Prosecutors Invoke Trademark Law," New York Times, Nov. 25, 2018, A23. Interestingly, the Mongols are a bit of a mainstream business with a Facebook page, a Twitter account, and a store for selling Mongol merchandise.  However, it is that business enterprise component that the Feds seek to shut down in order to cut off the group's funds and also remove the trademark from what law enforcement feels is the motivation for the criminal enterprise.


Prosecutors say that the Mongol patch is like the flag to the group's members; that it motivates them. And like the Hell's Angels, the Mongols have their patch registered with the U.S. Patent and Trademark Office.  Both the Mongols and Hell's Angels are aggressive in enforcing the use of their symbol.  The Hell's Angels are known to be litigiously protective of infringement, filing suit against Toys R Us, Alexander McQueen (fashion designer), Amazon, Saks, and Walt Disney for using symbols that closely mirrored the registered trademark.  bikers.jpg




The prosecutors asked for the seizure of the trademarked patch as part of criminal proceedings that began in 2008.  Initially, a federal district court judge granted an order that permitted the federal government to seize products, clothing, vehicles, motorcycles, books, posters, stationery, and any other merchandise that has the Mongol trademark. U.S. v. Mongol Nation, 132 F.3d 1207 (C.D. Cal. 2015).  However, the court also found that the mark was not distinctive enough to have the trademark separated out from the enterprise, and dismissed the indictment of seizure. . However, the 9th Circuit reversed ad remanded the case because it found that there was a possibility that the prosecution could establish that the trademark is distinct and is a motivating factor in the behaviors of the Mongol members. U.S. v. Mongul Nation, 693 Fex. Appx. 637 (9th Cir. 2017).


So, the prosecutors will begin their trial to establish the distinctive role of the trademark in Mongul's criminal enterprise.  Defense lawyers maintain that the prosecutors do not understand intellectual property rights and trademark law and are prepared the show the dangers of such government seizures. The Mongols have asked other clubs to participate in the case because if they take the Mongols' patch, the other clubs are next.  


When there are criminal enterprises, it is true that courts can order the seizure of cars, homes, personal property, and bank accounts as fruits of the criminal enterprise.  However, the seizure of intellectual personal property is uncharted territory because the logo is an ongoing ownership right, not the temporary disposition of tangible objects that can be replaced.  On the other hand, the control of behavior may need to address the motivational issues behind the members' criminal activities. 



Explain what a criminal enterprise is and discuss how they are disbanded by prosecutors.

What is the role of the logo in Mongul activity?


A jury decided on Friday, January 11, 2019, as part of an 8-week racketeering trial, that the Mongols must forfeit their rights to its trademark emblem. The trademark was forfeited because the jury found that the Mongols were a criminal enterprise. The judge, however, has indicated that he will review the First Amendment rights of the club prior to ordering the forfeiture.   Marianne Jennings' update


Federal District Court Judge David O. Carter issued a 51-page opinion following his review and concluded that, "The Mongol Nation's and its members' right to express their identity through the noncommercial display of symbols constitutes speech subject to First Amendment protections."  And he concluded that the First Amendment bars the government from exercising forfeiture laws over such property in racketeering cases because the result will be a "chilling" of free expression. The judge also added that the seizure of the trademarks violated the excessive fines clause of the Eighth Amendment, and no proof that forfeiture would "lead to less violence." 


Judge Carter did affirm the jury's guilty verdict on the racketeering charges themselves.  The effect of the decision was to nullify the jury verdict on the seizure of the intellectual property of the Mongols.