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Controversy Brews Over Government's Right To Confiscate Trademarks Owned By Motorcycle Gang.

LAS VEGAS, October 24, 2008 -- A controversy over the confiscation of registered trademarks owned by motorcycle gangs is brewing as federal law enforcement officials prosecute organized crime.

A motorcycle club known as the Mongrols federally registered their trademarks. In addition to registering the name MONGOLS, the club has also registered a cartoonish drawing of a grimacing man resembling Ginghis Khan wearing sunglasses.

Sixty-one members of the Mongrols motorcycle club were arrested on October 21, 2008 in seven states in connection with a federal racketeering indictment alleging drug trafficing and murder. The indictment was brought as part of a law enforcement campaign named "Operation Black Rain."

As part of the legal proceedings, prosecutors were granted ownership of the mark and given authority to prevent members from owning anything bearing the registered trademark. Thomas O'Brien, U.S. Attorney for the Central District of California, stated the goal was to enable police to stop anyone wearing a Mongrol patch "and literally take the jacket off his back."

The legal arguement for the confiscation is based upon the premise that the Mongrol's trademark is a property asset; and as such, it can be confiscated if used in the furtherance of a crime, which is permitted under federal statutes like The Comprehensive Drug Abuse Prevention and Control Act and The Racketeer Influenced and Corrupt Organizations Act. Typically, property seizures under these laws are in form of vehicles, real estate and equipment.

This proposed course of action has caused some civil rights advocates, like the American Civil Liberties Union, and trademark attorneys to question its validity.

“It’s a total outrage. It violates the First Amendment and it’s the most preposterous thing to happen to trademark law I’ve ever seen,” said Maggie McLetchie, staff attorney for the American Civil Liberties Union of Nevada. She added: “There is no authority for the government to get rid of trademarks. It’s more than a twisting of the First Amendment and trademark law. People have a right to express themselves, to say ‘I am a member of the Mongols,’ to wear symbols they feel they identify with. What this judge did is an outrage.”

A question has been raised regarding whether the government can confiscate items owned by individuals who came into the items when ownership resided with the previous owner, the motorcycle gang.

In an ironic twist, trademark owners are entitled to protection of a mark so long as the mark continues to be used, causing speculation as to whether the government will have to manufacture items bearing the MONGOL trademark in order to maintain ownership rights.

Motorcycle gangs for years have used emblems on their clothing to distinguish themselves from other gangs; in addition to, using emblems to establish ranks within their own organization and as a rewards for various actions. In conflicts between rival gangs, the losers are sometimes required to surrender "their colors," meaning their items of clothing with their gang emblems.

Authorities allege gang patches are a kind of criminal currency, like Boy Scout merit badges awarded to Mongol members who commit crimes. One gang member, accused of shooting two rival gang members, was granted permission from the group’s president to have the gang’s trademark insignia tattooed on his head as a reward for the shootings. The Operation Black Rain indictment also alleges members were encouraged and expected to engage in sex acts at Mongol functions and rewarded with specific patches of varying colors that identify the sex acts performed by the member in front of the organization.