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December 21, 2014

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Violent biker gang stripped of emblem

But feds’ crackdown violates civil rights, ACLU says

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Chris Morris

Authorities allege the patches are awarded to Mongols who commit crimes — something like a fallen Boy Scouts badge of honor.

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  • Metro police press conference on Mongols motorcycle gang members arrest and item confiscation
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Mongols confiscated items

Eight rifles, a chrome pistol and a revolver were among the items confiscated by law enforcement Tuesday. The weapons were used by the Mongols motorcycle gang. Launch slideshow »

What are the patches exactly?

Authorities allege the patches are awarded to Mongols who commit crimes — something like a fallen Boy Scouts badge of honor.

Can the government seize a logo just because it belongs to a criminal gang?

The Mongols brand is a registered asset. Just as the government may seize a drug dealer’s mansion, or a gang member’s Mercedes, the U.S. attorney’s office can take over the Mongols trademark, a spokesman for the U.S. attorney for the Central District of California said. Civil liberties groups are outraged, and trademark experts are skeptical of the legal reasoning.

“Monster” and “Monk,” members of the Mongols motorcycle gang, were at Chuck E. Cheese’s family-friendly pizza restaurant in San Diego last year when they ran into a rival — a member of the Hells Angels.

This offense of proximity prompted the Mongols to attack their enemy and, more important, according to the criminal indictment, snatch his gang attire — the jacket with the bad-boy patches and logos that separates outlaw bikers from your average dad choking down cheese pizza in a black leather vest.

This scene, violent and ridiculous, sums up the politics of patches in outlaw motorcycle gangs. It shows the symbolic weight the emblems carry for outlaw bikers, and why the federal government’s new ploy to strip the Mongols of their trademarked insignia will hit the bikers where it hurts — if it works, if it is not ultimately found to be a violation of free speech protections.

Sixty-one Mongols in seven states were arrested Tuesday in connection with a federal racketeering indictment that alleges the motorcycle club is involved in crimes from drug trafficking to murder. Seven of the arrests were men from the Las Vegas Valley. It’s an interesting story. And what the Mongols must do to earn their patches is fascinating. But the most compelling detail to emerge from “Operation Black Rain” is this: Prosecutors won the right Wednesday to bar the indicted Mongols from owning anything bearing their trademarked logo.

The goal, according to Thomas O’Brien, U.S. attorney for the Central District of California, where the Black Rain indictment was filed, is to empower police who spot anyone wearing a Mongols patch to “stop that gang member and literally take the jacket right off his back.” It’s an unprecedented approach that has civil liberties advocates nervous, and trademark experts skeptical.

And yes, the Mongols’ trademark is real: “Mongols” in arching sans serif type is Trademark No. 2916965. The name appears on the back of their biker vests with a cartoon image of a grimacing rider sporting sunglasses and a topknot. The image is worn as a center patch, one of three that make up the gang’s entire insignia: the cartoon rider, the word “MONGOLS” above, and the member’s geographic chapter below.

These patches are a kind of criminal currency — a fallen Boy Scouts badge of honor, awarded to Mongols who commit crimes, authorities allege. One gang member named in the Black Rain indictment, for example, was granted permission from the group’s president to have the gang’s trademark insignia tattooed on his head as a reward. He allegedly shot two members of a rival gang.

Whenever Mongols squared off with rival gangs, they would “threaten to beat or kill them if they do not surrender” their colors, according to the indictment.

Also according to the indictment: Mongols are encouraged and expected to engage in sex acts at Mongols functions or when prearranged ‘wing parties’ are held. They then are rewarded with wing patches with colors that identify the sex acts performed by the member in front of the organization.

No matter how unsavory the patches, however, the question remains: Can the government seize a logo just because it belongs to a criminal gang?

The legal logic goes something like this: The Mongols brand is a registered asset. Much as the government may seize a drug dealer’s mansion, or a gang member’s Mercedes, the U.S. attorney’s office can take over the Mongols trademark, according to O’Brien’s spokesman, Thom Mrozek.

The logo, they realize, is the symbol of all things Mongol — taking the trademark is like capturing the other team’s flag.

Law enforcement officers are now being given a “protocol for how to react to displays of the Mongol trademark,” Mrozek said. Its unclear just what that protocol will be.

All of this makes civil rights advocates furious.

“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.

“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.”

Take it one step further: If the government gets fed up with the Crips and Bloods gangs, can it ban the colors blue and red, which they use to identify themselves?

The Mongols have registered both their name and the image of the cartoon Ghengis motorcyclist as trademarks. The order U.S. Attorney O’Brien won restraining the sale or display of the gang’s logo, however, makes note of only the registered name, not the cartoon. Put simply, they were awarded ownership of the word “Mongols,” but not the man on the bike, seemingly because they didn’t ask — or just forgot to. Still, as long as the word “Mongols,” no matter what the typeface, appears somewhere on the club’s logo merchandise, the government can still seize it, according to Ryan Gile, a Las Vegas lawyer specializing in trademark and intellectual property law.

The trademark, Gile figures, is an asset like any other that might be seized from a criminal enterprise. What he is skeptical of, however, is whether the government can actually prohibit people who already own Mongol gear from wearing it. Though Wednesday’s order doesn’t state the Mongols can’t wear their gang clothing, it does say they must give all of their clothing up, which seems to accomplish the same goal.

Writing on his blog about trademark law, Gile noted that items bearing the Mongols logo “were authorized goods at the time they were purchased by the members, so how can the government now dictate how the members can wear such clothing?”

It gets more complicated. Trademarks are really protected only through continuous use. The Mongols logo must be utilized if the trademark is going to be maintained. This has led some observers to suggest, only half-jokingly, that the government must crank out its own set of Mongol-branded goods just to keep the trademark valid.

But Gile said that if the trademark’s new owners make a good-faith effort to do something with the asset in the next few years, even if that something means trying to sell it, then they can keep the logo, at least until someone challenges their rights to it.

All of this will slowly work its way through the courts, just like the dozens of Mongols members, now facing serious sentences for racketeering and assorted crimes. What won’t be determined by a judge, however, is whether taking a criminal organization’s trademark will do anything to prevent crime. The Mongols are several hundred members strong. Local police have claimed the seven Las Vegas arrests have successfully squelched Nevada branches, but what about the members in the club’s Italian chapter? If you believe the Mongol Web site, the gang also has chapters in Mexico and Canada.

David B. Smith, former deputy director of the Justice Department’s asset forfeiture office, was widely quoted in Tuesday’s press saying, “It’s an interesting theory, but you’ve really got to wonder whether it would have any practical effect. My hunch is the Mongols are just going to keep wearing their patches.”

Or at least their tattoos.

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