CALIFORNIA - U.S. to use trademark law to go after Mongols patch

OFF THE WIRE

LOS ANGELES >>
Five years after ATF agents rounded up 80 members of the Mongols Motorcycle Club in a sweeping criminal indictment, federal prosecutors remain locked in a struggle with the group over control of its well-known logo, typically worn as a patch on members’ backs.
On one side of the battle is the federal government and a 44-page grand jury indictment levied against Mongols Nation, LLC., a group prosecutors decry as an “outlaw motorcycle gang.” The document details murder, attempted murder, drug deals and deviant sex acts.
On the other side are Mongols and former Mongols who see the attempt to take their patch as a serious limit on their free-speech rights. In court papers, attorneys for club President David “lil Dave” Santillan describe the Mongols as a club founded by Latino war vets who have been misunderstood and stereotyped as criminals because they believe in freedom and liberty.
After ruling last week that the government could go ahead with its case and finding that a countersuit filed by Santillan against Attorney General Eric Holder was invalid, federal Judge Otis Wright set a March 25 trial date.
The fate of the patch now rests in his courtroom. And, Santillan said that, for the most part, Wright’s rulings have been “biased in favor of the government.”
“There hasn’t been anything major in the news for years,” Santillan said. “We’ve been pretty good about polishing our image and trying to get away from that stigma that’s been hanging over our heads.”
In fact, Santillan says Mongols aren’t too different from other large institutions that he believes have also been mischaracterized by the media after legal action.
“It’s like the LAPD or the Catholic Church, the bad apples represent a small percentage — it’s not even 10 percent,” he added as he prepared to lead members of the club on a weekend run to Palm Springs. “We’re paying for their mistakes.”

OPERATION BLACK RAIN
In October 2008, acting on information contained in a grand jury indictment, agents with the federal Bureau of Alcohol, Tobacco and Firearms (ATF) raided locations in six states and arrested several dozen Mongols members or associates as part of Operation Black Rain. In the process they seized guns, motorcycles and drugs.
Among those arrested was then-Mongols President Ruben “Doc” Cavazos. It was Cavazos who originally trademarked the club’s logo and filed paperwork organizing the group as a legal California corporation. At each location where agents served arrest warrants, they also sought out jackets, patches and other items bearing the Mongols’ logo.
The trademarked Mongols logo is unmistakable: The black-and-white image is that of a sunglasses-wearing, bell bottom-clad man with a Fu-Man Chu mustache and a long queue on top of his bald head. The man appears to be holding a sword as he sits in the saddle of a chopper. On his vest is what appears to be a three-stripped battle or combat ribbon that looks a lot like those awarded to Vietnam vets.
At a news conference announcing the busts, John Torres, special agent in charge of the ATF’s L.A. field office, pointed out the significance of Mongols logo and the seizures.
“They live by that Mongols patch,” he said. “We take what’s most dear to them. ... We’re gonna break their back. We’ll do whatever we have to do to stop the violence.”
In interviews, Torres and other law enforcement officers promised to stop patch-wearing members of the gang and strip them of their colors wherever they were encountered.
The 100-page indictment Torres released in 2008 detailed a list of alleged drug dealing, extortion, assault and attempted murder by members of the group.
Ultimately, everyone named in the 2008 Black Rain indictment pleaded guilty and received sentences ranging from a couple of months to dozens of years in federal prison.
Cavazos, his son Ruben “Lil Rubes” Cavazos, and brother Al “The Suit” Cavazos, were ultimately punished by the club and had their memberships revoked — known as being put “out bad.”
But there was a limited victory for Cavazos and the club. During the course of the prosecution, federal Judge Florence Cooper ruled that the government had no right to seize the Mongols trademark or take the patch.
“The government lied in order to obtain an indictment,” Doc Cavazos wrote in an email from federal prison critical of the renewed effort to punish the Mongols. “If this were China or the old Russia, it would be business as usual. But this is the United States of America ... Judge (Cooper) has already ruled on this matter.”
Author Donald Charles Davis, known as “Rebel,” said there are many similarities between the 2008 case and the current indictment. Davis’ blog, “Aging Rebel,” is a sounding board for bikers and an online forum.
“The current case against the word Mongols is being prosecuted by Chris Brunwin and Steven Welk, the same two guys who prosecuted (Cavazos),” said Davis, author of “Out Bad: A True Story About Motorcycle Outlaws.”
“I have been following that case for five years, and the idea has always been to find a way to ban motorcycle clubs in the U.S. This particular incarnation of what is really one long war of attrition is about driving the Mongols out of business by forcing the club to defend itself over and over against successive prosecutions.”

KING DAVID
Judge Cooper died in 2010 and portions of the case went before Judge David Carter — known as King David to attorneys who practice before him. Carter agreed the Mongols trademark was off limits, but suggested to Welk and Brunwin a way to take the patch that might pass muster in court. It required indicting the entire gang as an entity.
As a result, Wright, who heard portions of the 2008 case, has the new indictment to consider. It calls out the club for many of the same criminal acts and seeks to define what it means to be a Mongol:
“(The gang) issued incentives such as tattoos and patches to honor Mongols for committing acts of violence on behalf of the Mongols gang and performing specific sexual acts at Mongols gang events ...
“Many full-patched members also displayed a patch with the designation 1 percent to distinguish themselves from the 99 percent of motorcycle members who were legitimate and law-abiding and identify themselves as being within the 1 percent who were not legitimate and did not adhere to the law or the rights of others.”
In short, the 2013 indictment in Wright’s court, which details shootouts, stabbings and small-scale dope deals, equates being a Mongol with being a criminal. Which is along the lines of Carter’s suggestion to prosecutors.
It could be a tough case for the Mongols to fight.
“Judge Wright is particularly sympathetic to the U.S. Attorney’s point of view and blatantly hostile to the Mongols,” Davis said. “Wright appears to be emotionally invested in finding a way to outlaw motorcycle clubs.”
The idea that an “outlaw” club can be outlawed is exactly what Doc Cavazos believes is at the heart of the latest prosecution.
“It is not just the Mongols and other motorcycle clubs that will have their freedoms trampled,” he wrote. Any legitimate group or club can become victims.”

TRADEMARK VS. FIRST AMENDMENT
At its heart, the case poses some interesting legal questions, said Rebecca Tushnet, a Georgetown law professor who specializes in trademark and intellectual property law.
“I’ve never heard of anything like this in terms of trademark law,” Tushnet said. “There’s no barrier to the government seeking this kind of remedy, but there are some prohibitions.”
Tushnet said taking the trademark — for example — wouldn’t give the government the right to rip jackets off the backs of Mongols any more than it has the right to rip counterfeit Louis Vuittons from the clutches of random women shopping on Rodeo Drive.
And the point where trademark law overlaps with protections for free speech outlined in the First Amendment is “simply a mess,” Tushnet said.
It is likely the government will argue that the Mongols are a “clear and present danger,” and they will likely conclude that on that basis Mongols members should forfeit their patch.
“But, it’s hard to imagine that a symbol worn on someone’s back as they are riding down the highway meets that standard,” she said. “What the government is trying to do — if I understand correctly — it’s trying to do a little slight of hand in terms of seizing that trademark.”
Which is exactly what Santillan hopes to prove, and he says he has backing in the cause from traditional rivals who belong to other groups.
“A lot of clubs are taking the same stance and want to band together to fight this thing,” he said. “It’s about everybody that wears a patch from Christian bikers to one-percenters. This is going to be a big thing. There’s a lot of constitutional issues involved in this.”

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