Court Bans Motorcycle Gang From Wearing Trademark Logo
October 23, 2008Injunction may not be constitutional, critics say
U.S. District Court Judge Florence-Marie Cooper on Wednesday granted an injunction that prohibits gang members, their family members and associates from wearing, licensing, selling or distributing the logo, which typically depicts the profile of a Mongolian warrior wearing sunglasses.
Prosecutors requested the injunction after authorities arrested dozens of Mongol members under a racketeering indictment.
"If a Mongol is wearing a vest or jacket bearing the Mongols patch, that item is pursuant to seizure based on this order," said Assistant U.S. Attorney Steven Welk.
It is believed to be the first case in the nation in which the government has sought to take control of a gang's identity -- via its logo -- through a court order.
"I've never heard the government going after something like this in this context," said David Welkowitz, a law professor at Whittier Law School. Welkowitz said attorneys and academics who specialize in trademark law are wondering whether the order will stand.
Sixty-four Mongol members have been arrested in six states under an indictment released Tuesday.
The indictment describes a tightly organized group, which is mostly Latino, that routinely engages in murder, torture, drug trafficking and other offenses.
Among 79 people named in the indictment, 15 were still at large, said Mike Hoffman, a spokesman with the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The judge initially issued an injunction Tuesday, but that order was limited to barring the sale or distribution of the logo. New language was added, saying the gang members and their affiliates "shall surrender for seizure all products, clothing, vehicles, motorcycles ... or other materials bearing the Mongols trademark, upon presentation of a copy of this order."
Welk said his office is drafting the protocol for such seizures. Law enforcement agencies could begin enforcing the injunction by Thursday or Friday, he said.
Observers questioned whether the injunction is constitutional.
"Here you have the government stepping in and preventing a rights holder of using the (trade) mark they legally obtained," said attorney Douglas Mirell, who specializes in First Amendment cases.
"It strikes me as a serious potential First Amendment violation to have the government come in and attempt to, and in this case exceed, stripping lawfully obtained rights," he added. "This is one for the record books."
Meanwhile, 44 defendants have appeared in court, all of them pleading not guilty. It wasn't immediately clear whether they had been assigned defense attorneys.
The incarcerated Mongols were being kept at various federal detention centers, separate from inmates loyal to the Mexican Mafia gang, said Anthony Burke, a supervisory inspector with the U.S. Marshals Service in Los Angeles. Segregation of incarcerated rival gang members is common practice.
The Marshal's Service is guarding 60 motorcycles, almost all of them Harley-Davidsons, that were seized during Tuesday's operation. Burke estimated the average value of the customized machines to be $22,000.
Associated Press writer Thomas Watkins contributed to this report.
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