Logos are an important part of any organization, whether it’s a company, a nonprofit, or an allegedly criminal motorcycle gang. And for the last 10 or so years, the government has been trying to limit the reach of a 1,000-member-strong Los Angeles-based biker gang called the Mongols by seizing the trademark of the group’s logo.
But in the latest decision in a long line of court cases and appeals, an L.A.-area judge ruled that the Mongols could not be stripped of their logo, arguing that a jury’s January decision to do so violated the organization’s first amendment rights of freedom of expression and eighth amendment rights banning excessive punishment. That means that the Mongols’ symbol–a Genghis Khan-like figure with sunglasses riding on a motorcycle–isn’t going anywhere. In essence, logos qualify as free speech, and the ruling confirms that. “The District Court Judge was right to review the jury verdict with an eye to the constitutional issues it raised,” says Christine Farley, a law professor at American University. “And he was right that the forfeiture in this case would have operated to deny the members their protected speech rights.”
In the original case, the government tried to argue that it should seize the Mongols’ trademark like it’s a “good” because Mongol members used the mark to intimidate others, much like a gang member might use a gun to coerce and intimidate. The Mongols organization has been convicted of racketeering, conspiracy, and shared responsibility for individual members’ convictions of murder, attempted murder, and drug crimes.
According to the New York Times, the government has tried other methods to nail the Mongols for their criminal activities and curb the organization’s power, including sending agents undercover, suing individual members, and even arresting bikers en masse. But limiting the gang’s ability to use its logo was seen as a more far-reaching blow for the large organization. (Prosecutors have tried a similar tactic with a Michigan-based gang called the Devils Disciples, which also failed.)
But even if the government were to take away the organization’s trademark, members would still be free to wear their jackets. A trademark only comes into play when someone is selling something–for instance, giving Apple the legal ability to come after you if you were building and selling computers that had the symbol of an apple on the back, since you would be using its trademark in the context of commerce. When it comes to a biker gang though, their logo is a collective symbol that people wear–there’s no commerce involved.
“It would set a bizarre precedent to include trademark forfeiture as a punishment for criminal or [Racketeer Influenced and Corrupt Organizations Act] violations,” University of New Hampshire School of Law professor and IP expert Alexandra J. Roberts tells Fast Company. “If a mainstream company like Apple or General Motors were accused of, for example, defrauding shareholders or releasing a product it knew to be dangerous, we wouldn’t try to punish it by making its trademark disappear, because trademark meaning resides in the collective understanding of consumers.”
Still, this isn’t the first time the Mongols’s logo has been the subject of a court case. Prosecutors have been using the logo tactic since 2008, with different judges interpreting intellectual property law differently over the years, to decide whether it’s legal and appropriate to “seize” the Mongols logo. Every time a judge has ruled against them, the Mongols have appealed the case.
The cycle still may not be over: A statement from the U.S. Attorney’s office indicated that prosecutors may appeal the decision. In doing so, they’ll keep an avant-garde interpretation of trademark law alive–even if it still hasn’t worked, more than 10 years later.