By The Fashion Law
It is common knowledge that the Hells Angels logo and the club’s other insignia are utterly off-limits to all but a select group of individuals. In the “rule-bound world of the Hells Angels Motorcycle Club,” investigative reporter Serge F. Kovaleski, stated in 2013, “only full members are permitted to wear the provocative death’s-head patch or the two words of the club’s name, which, like the logo,” are protected by law across the globe. Patches cannot be bought. They may only be earned, and oftentimes, that takes years.
Fontana is an arid, highly-populated inland expanse in San Bernardino County, California bordering on the San Gabriel Mountains. It was here that the Hells Angels got its start. A handful of young World War II veterans, “bored with the tedium of civilian life,” came together in the late 1940s to drink, ride cheaply-acquired motorcycles thanks to a post-war surplus, and generally, pass the time back on U.S. soil. In the process, these men – many in their late teens – laid the foundation for what would become “a uniquely American subculture of hardened individualism, fierce fraternity and contempt for society’s mores,” as Kovaleski so aptly put it.
In the decade that followed the Fontana chapter’s founding, it would be joined by a number of other, similar groups. According to the New York Times, “Throughout the 1950s, Hells Angels groups spread out across California, eventually uniting into a confederation with each club maintaining its own autonomy.” The now-notorious club has since extended much further than the bounds of California to include independently-operated charters that dot the globe – from Southern California and Manhattan to Paris, Rio de Janeiro and Sydney, just to name a few.
The group, as a whole, boasts roughly 800 members across the U.S. and up to 2,500 worldwide, according to the U.S. Department of Justice. The Bureau of Alcohol, Tobacco, and Firearms puts the number at closer to 5,000 members, and at least 10,000 regular “hangers-on.” As for Ralph “Sonny” Barger, who founded the Oakland charter in the late 1950s when he was 18 years old, he “refuses to say how many Hells Angel members there are,” has says that it has experienced something of a “growth spurt.”
Despite a lack of clarity about the group’s numbers, at least one aspect of its history is relatively clear; it is littered with legal matters that speak to a vast empire of drug dealing, trafficking in stolen goods, racketeering and extortion. If court dockets across the U.S. are to be believed, where members of this organization go, violent crime tends to follow.
But look beyond the headline-making Racketeer Influenced and Corrupt Organizations Act indictments, jury verdicts, and lengthy prison sentences, and you will see that over the past two decades or so, a different type of lawsuit has come to be associated with the group: intellectual property litigation.
As the stories go, if a Hells Angel member “sees somebody with a Hells Angel patch that doesn’t belong on his back,” he will rip it off and bestow upon him a brutal, often-bloody lesson. “The Angels have always dealt swiftly with fakes, phonies – imposters,” Intellectual Property Magazine wrote a few years ago. “That’s one of the reasons why the patch is so important – it’s a mark of authenticity.”
If the 70-year old club learns of a company making use of its legally – and sometimes physically – protected logos, its members take a markedly different approach; they take legal action.
Court filings across the country evidence this. In 1992, for instance, the Hells Angels Motorcycle Club (“HAMC”) filed suit against Marvel Entertainment Group over a Hells Angels-themed comic book. In the spring of 2006, the group took on a division of Walt Disney over the PG-13 rated film “Wild Hogs,” a comedy about middle-aged bikers, starring Tim Allen, John Travolta, Martin Lawrence and William H. Macy. In 2011, they went up against Alexander McQueen, Saks Fifth Avenue and Zappos.com, taking issue with the manufacture and sale of handbags, jewelry and garments bearing designs that were – in their eyes – far too similar to the club’s skull-and-wings death’s-head design.
In all of those lawsuits and the frenzy of others like them, Fritz Clapp, counsel for the HAMC – the elite group of motorcycle enthusiasts or the vicious gang that uses violence and intimidation to further its criminal objectives, depending on whose definition you adopt, the group’s or the U.S. Department of Justice’s – pointed to federal trademarks registered to the HAMC, some dating back to the 1970s, and called infringement.
The group’s former counsel does not remember exactly how he first found out that Saks Fifth Avenue was selling pricey fashion items bearing the death’s-head logo. “I think a New York member called me after being told that a non-member had seen them” in the upscale department store, if he recalls correctly, but cannot say for sure.
Mr. Clapp’s nearly 25 year tenure with the club began in the early 1990s. “At the time, I was working as a biker-rights lobbyist, and Sonny [Barger] was in prison as a result of a RICO case,” Clapp says. Berger, the head of the Oakland Chapter and of the Hells Angels’ corporate arm, would ultimately be relinquished from the system in November 1994 after a 4-year federal prison sentence and 2 years of parole stemming from his role in a nationwide conspiracy to bomb a rival club, and celebrated with a party attended by 700 people, including the likes of then-U.S. Senator Ben Nighthorse Campbell.
In the meantime, though the Oakland-based Hells Angels Motorcycle Corporation – the non-profit mutual benefit corporation that owns and maintains all of the club’s intellectual property right – was facing an ever-growing number of unauthorized uses of its name and logos. Its higher-ups decided that the time had come to enlist an in-house lawyer to handle its intellectual property affairs.
“We Need a Lawyer”
With Barger temporarily out of commission, the notorious James “Guinea” Colucci, a close friend of Barger’s and a “full” patch-wearing member of the HAMC’s Oakland Chapter, interviewed Clapp for the role.
Clapp says that he came onto the group’s radar as a result of his work as a Modified Motorcycle Association lobbyist in opposition of a nineties-era California state law that stood to make helmet-wearing mandatory for all motorcyclists. The law passed, much to the club’s – and Clapp’s – chagrin. “I still do not wear a helmet that complies with federal motor vehicle safety standard 218,” he states defiantly. “I hardcore resist.”
In his interview with Guinea, who, according to the Los Angeles Times, had just “been released on charges of dealing in methamphetamines, cocaine, illegal weapons and explosives,” Clapp says that he was asked what he would do if somebody infringed one of the Hells Angels trademarks.
“I said, ‘Well, we’ll send them a cease and desist [letter],’” Clapp recalls.
“What would you do if they do not cease and desist?,” Guinea followed up.
“I said, ‘Well, then I’ll sue their ass,’” Clapp responded.
“That was obviously the right answer,” he says more than 25 years later. Shortly thereafter, the red mohawk-bearing attorney was brought on board, and would dedicate a large part of his professional career to helping what he calls “the most famous club in the entire world” to protect its valuable intellectual property.
“I was hired in March of 1992 by the HAMC’s non-profit corporation, which owns the trademarks, and licenses them out to the charters,” he says. “I didn’t actually work for the charters or the members. I worked for this separate thing, which owns the marks and sues on behalf of the licensees basically.”
Despite looking – and to some extent, living – the part, Clapp is not and never has been a member of the club. “There are lawyers that are big enough and tough enough [to be members], but I ain’t one of them. I’m just little old me,” he says innocently enough in reference to mild demeanor and squat stature, compared to some of the group’s members, that is. “Plus,” he adds, “that would have blurred the relationship or created some sort of conflict.”
With a plethora of tattoos, the bright red mohawk, a longstanding love of motorcycles (his current motorcycle was a gift from the Oakland arm of the club in 1994 or ’95, he says), and a biker bar that he called his own, this particular lawyer made sense for the role. “I was enough like them to understand and relate.”
While Clapp, who graduated from the McGeorge School of Law in Sacramento in 1981, was not the group’s first lawyer, he certainly is the most notorious. Two decades prior, the HAMC had enlisted outside counsel, a traditional “suit” – as Clapp describes him – named John M. Romanchik, Jr. to register the group’s name and various other logos with the U.S. Patent and Trademark Office. Romanchik focused primarily on getting the club’s rights in order and “never had the occasion to bring a trademark infringement lawsuit,” per Clapp.
High-Profile, Media-Friendly Lawsuits
With an arsenal of trademark rights at his disposal, it was time to act, and that is precisely what Clapp did – filing more than a dozen high-profile lawsuits for the notorious “outlaw” motorcycle club against companies ranging from Marvel Comics to rapper Young Jeezy. His aim was simple. The strategic suits were not just initiated to “punish infringers” but were part an effort to “educate the public that the Hells Angels trademarks are well guarded, not generic and must not be infringed,” Clapp told the Times in 2013.
In order to get the message out, Clapp says he employed a “strategy of bringing shock-and-awe cases and to shine a bright light on them in federal court and the media.” His well-established penchant for rigorously – and very publicly – protecting the group’s sacred trademarks would ultimately land him on the cover of Intellectual Property Magazine in March 2011. The buttoned-up legal trade publication coined him “The Lawyer From Hell.” The nickname would stick.
It is almost impossible not to appreciate that at the heart of the Hells Angels’ out-in-the-open litigiousness over its intellectual property is a healthy dose of irony. While the club’s in-house counsel was busy filing trademark infringement suits against the likes of Disney and Alexander McQueen, at least some of its members were actively making headlines for “wreaking death and destruction in California over the past 10 years,” for instance, or for landing on the wrong end of charges of “racketeering and conspiracy to commit racketeering – specifically, fraud, extortion and trafficking in stolen motorcycles.”
The highly image-conscious HAMC has an explanation: those who act out are “bad apples.” More than that, because each chapter is set up as an independently-owned and operated entity, the intellectual property-holding Hells Angels corporate arm is – at least on paper – completely separate.
In a move that speaks to the group’s sheer business – and legal – savvy, each time a chapter or its members have a brush with the law, the self-described “non-profit mutual benefit corporation” that is the HAMC figure-head organization can accurately distance itself on the basis that such events are technically not connected to HAMC as a whole.
“The Hells Angels care more about their image than any other crime group,” Julian Sher, a Montreal-based investigative journalist, who has written extensively about motorcycle gangs, told Newsweek. The group’s carefully-crafted structure is just one example of its efforts to protect itself from what Barger has called “exaggerated” accounts of crime and violence.
“Sure, I sold a few drugs, but I never made the multimillions [the media and prosecutors] claim. If I did, I sure wouldn’t be working here today,” he told the Los Angeles Times in 1994, referring to his now-defunct Oakland Custom Motorcycles repair and parts shop, located just across the street from the stone-covered facade that is the Clubhouse of the Oakland Hell’s Angels Motorcycle Club. In terms of jail time: Barger has spent “12 or 13 years” in prison, which, he says, is “not much, considering all the fun I’ve had.
As for all of the others who wear a Hells Angels patch? “I’d rather let them speak for themselves.”
Highly Litigious and Highly Litigated
Mr. Clapp is not immune to – or unwilling to speak to – the conflicting messages associated with the club. He says that he has always “reconciled” the seeming dichotomy in a two-fold manner. “Yes, there are Hells Angels that have committed crimes. There have even been entire charters that have conspired to commit crimes; hell, there have been entire charters that have been disbanded because they all got arrested.” But, according to Clapp, “that does not mean that the club as a whole is a conspiracy.”
It also does not mean that the group’s wildly valuable trademark portfolio is not as much in need of protection and enforcement as that of any other company’s. In fact, he claims that given the HAMC’s level of notoriety, the need for protection is even higher.
Not only does the club maintain “strong feelings about having control of the exclusivity of the use of their membership marks,” the HAMC’s marks “are in danger of becoming generic,” he says, referring to the use of a trademark as synonymous with or descriptive of a general class of product or service, as opposed to a single source. This is the death knell for strong trademark rights.
The Hells Angels are “so famous,” Clapp asserts, “that they are the Kleenex of what they are,” a reference to the widespread misuse of the formerly-protected Kleenex trademark to refer to tissues generally, thereby robbing the Kleenex company of its formerly-held trademark rights.
“I say it is in danger of becoming generic because if you go out on the street anywhere in the world and say, ‘name a famous motorcycle club,’ it’s the only one anybody could name,” and so, in Clapp’s eyes there is a danger that the Hells Angels name will be used synonymously with motorcycle clubs in general, thereby no longer serve to identify a single group or source.
With that in mind, the group must police unauthorized uses of its trademarks, according to Clapp, and the tenets of trademark law.
Meanwhile, Clapp, now 72 years old, left his post with the group in 2016. “I still do occasional things, still represent a couple charters but not over the membership marks,” he says. That does not mean, though, that the group has become any less vigilant. As we speak, the HAMC is in the midst of a legal battle with Melbourne-based Redbubble in federal court in Australia. According to the HAMC’s complaint, the online marketplace facilitated third party sales of counterfeit Hells Angels’ merchandise on its site.
As for Mr. Clapp, such vigilance on the part of a “famous brand” makes perfect sense.
What is less straightforward to him is why the group’s polarizing public persona plays such a divisive role when it comes to its right to enjoy legal protections. “People think that just because a group is depicted a certain way that they’re kind of no longer allowed or should be given the benefit of the law in other areas, such as intellectual property,” he says. “To me, that’s so interesting.”