The more than 1,000 members of the Mongols biker gang broadcast their membership on vests, T-shirts, bikes, and their skin using a logo: a cartoonish image of a burly man who resembles Genghis Khan grasping a saber in one hand while steering his motorcycle with the other.
Federal prosecutors, who have shown that the gang is linked to a number of crimes, have been trying to strip the club and its members of their right to use the logo for more than a decade. According to a story published in The New York Times, that fight continues in a Los Angeles county racketeering trial, where prosecutors are trying to use a law that allows them to seize goods that were used in criminal activity. They’re arguing that the trademark to the Mongols’ logo is a “good” that should be confiscated because gang members have committed crimes under its banner and used it to intimidate people.
“The government will show that the marks served as unifying symbols of an enterprise dedicated to intimidating and terrorizing everyone who is not a member and assaulting and killing those who have sworn their loyalty to other outlaw motorcycle gangs,” reads one court filing.
It’s a fascinating attempt to fight crime by diluting the brand of the alleged criminal enterprise. If the Mongols were to stop wearing their patch, as it’s also known, their power theoretically wouldn’t be as strong because they wouldn’t be easily identifiable, making it harder to intimidate their enemies. The Times reports that prosecutors also tried this tactic in a Michigan trial against six members of the Devils Disciples gang, but then dropped the bid for the trademark when they realized that none of the defendants owned it. Other biker groups have vigorously defended their logos in court against companies that used them without authorization, like Alexander McQueen, Amazon, and Disney. But this unusual legal strategy tries to use the power of gangs’ symbols against them.
So what happens if the government is granted ownership of the trademark? Prosecutors seem to think that the police will be able to simply take Mongols’ jackets away from them. But according to Sarah Burstein, an associate professor of law at the University of Oklahoma College of Law, it may not be that simple. “In theory, a court could cancel [a trademark’s] federal registration,” she tells Fast Company via email. “But under U.S. law, trademarks arise from use in commerce. I don’t know how you can really seize a common-law right.” In other words, trademarks only really apply when people are using them to make money–which isn’t the case here.
The government began trying to take the Mongols’ patch back in 2008. Over time, different judges have ruled differently on whether it was legal to seize the trademark or not. Each time, the Mongols fought back, arguing that it is their first amendment right to wear the logo, and that because it’s the property of the organization, the government can’t seize the trademark.
The court is still out on which way the judge will rule. But it could set a precedent for whether the law considers logos an accessory to crime.