OFF THE WIRE
When I think of the Hells Angels, what immediately comes to mind are a notorious
gang of men in leather on Harley-Davidson motorcycles, the 1960's
counterculture, and news reports of illicit activity. When I think of Toys "R"
Us, what immediately comes to mind are Barbie® dolls, Candyland® board games,
Fisher-Price® baby toys, and Lego® blocks. What doesn't come to mind is Hells
Angels suing Toys "R" Us for trademark infringement claiming that the toy
retailer is selling toys bearing the Hells Angels federally registered "Death
Head" logo without authorization. You can't make this stuff up.
The truth
is that the Hells Angels is a non-profit mutual benefit corporation organized
under the laws of the State of California, and owns quite a number of existing
federal trademark registrations and applications for various word marks and
logos it uses on and in connection with a variety of goods and services. That
this organization is an internationally famous, worldwide brand owner with a
lucrative trademark licensing program would, I am sure, surprise some of the
original members from different motorcycle clubs, such as the Pissed Off
Bastards of Bloomington, who founded the organization in the 1940s. Its website
at www.hells-angels.com and its Facebook page would also probably
turn a few helmeted heads from the past. However, this group has a brand, which
has turned out to be a very valuable brand, and brands of any and all kinds need
to be protected to save them from abuse.
The basis for the litigation is
the sale by Toys "R" Us of yo-yos manufactured byYomega Corporation, a
co-defendant, which allegedly bear the "Death Head" logo. Hells Angels owns
several federal trademark registrations for that logo, which is described in the
registrations as consisting of a "horned human skull with helmet and winged yoke
device." (Not a visual you usually associate with children's toys.) Although
Hells Angels does not have the mark registered for use on any toys, it claims in
its Complaint that the mark used on the yo-yos is likely to confuse the public
into mistakenly believing that the toys originate with Hells Angels. It also
claims that its mark is so famous that the mark used on the yo-yos dilutes the
distinctive quality of the Death Head mark. Yomega itself owns a federal
trademark registration for a logo mark consisting of the word Raider® with a
skull design.
Both Defendants deny all the allegations against them in
the Complaint, and Yomega filed counterclaims against Hells Angels for
cancellation of the "Death Head" registrations on grounds of alleged fraud in
the procurement of those registrations. The thrust of these allegations is that
Hells Angels submitted trademark applications signed under penalty of criminal
perjury attesting to the fact that it had a "bona fide intent" to use the Death
Head mark on all the goods listed in the applications and to provide all the
services listed in the applications, when it had no such intent. As a result,
Yomega claimed that the resulting registrations are tainted with fraud since
they cover goods and services for which the mark has never been used. Claims of
this type have become much more frequent and successful in recent years, and
many registrations have been cancelled as a result.
As interesting and
entertaining as it may have been to watch the motorcycle gang duke it out in
court with the toymakers and toy sellers, we have been deprived of that pleasure
since the parties settled the case and the lawsuit was dismissed with prejudice.
The terms of the settlement are not known. As of the date of this writing, the
Death Head Registrations remained intact and the Yomega Raider yo-yos which were
alleged to have been infringing were still being sold online.
This,
undoubtedly, will not be the end of Hells Angels' trademark policing efforts. In
past years, it has sued Amazon.com Inc., MTV Networks Enterprises Inc., the
clothing label Young & Reckless LLC, and other well known fashion retailers
for manufacturing and selling T-shirts bearing marks it claimed infringed its
registered rights. Hell hath no fury like a biker infringed.
http://www.mondaq.com/unitedstates/x/251684/Trademark/Hells+Angels+And+Toys+R+Us+Settle+Death+Head+Trademark+Litigation
