agingrebel.com
Welk and Co. are many things, but it would be a mistake to believe them stupid. Welk and his crew are well aware of all that Kulik writes about in the article Rebel has linked to. Unless Yanny and Co. are working pro bono, the cost of this fiasco to the Mongols MC will be (if it already isn’t) absolutely staggering and that’s the government’s real goal here. This is a textbook example of what Rebel refers to as “extra Judicial punishment”.
PALADIN
The United States versus Mongol Nation case has quickly devolved into a kind of thought experiment for lawyers.
Over the last couple of weeks many
distinguished trademark attorneys who have never gotten around to
reading the indictment have weighed in on the subject and they have all
missed the point. The importance of the case has never been about
trademark law but, rather, the absurdity to which our government has
stooped to create a phony problem (the motorcycle gang problem) and turn
it into a make works project for public employees.
Nevertheless, some of the trademark
lawyers’ comments are thought provoking and the best so far are in an
article by Tom Kulik published today on the Above The Law
newsite. Kulik is an intellectual property attorney and a partner in the
Dallas law firm Scheef & Stone. The points he raises aren’t
original except, possibly, to him and the general public. They have been
raised by the previous Mongols attorneys George L. Steele and Bob
Bernstein and by current lawyer Joe Yanny but they remain unheard except
by people without some connection to the case.
Intellectual Property
Kulik is smart enough to notice that,
“unlike tangible assets, intellectual property involves inchoate rights
that are simply not conducive to” criminal forfeiture. (It may bear
repeating that the Mongols marks are not trademarks but “collective
membership marks.”)
One of his obvious points is that:
“Taking the Trademark Will Not Take Out the Club. The underlying
rationale proffered by the federal government here is that the
forfeiture of this trademark will ultimately give the federal government
the ability to dismantle the club by forcing removal of the logo from
the club member’s jackets and other property and destroying their
‘identity.’” But, “what is to prevent them from rebranding?”
The rebranding doesn’t have to be major.
In fact the long established Bandidos Motorcycle Club changed its
logogram a few years ago to differentiate itself from Bandidos in Europe
and Australia.
Secondly, Kulik argues, “If the federal
government controls the trademark, it seems clear that they will not be
licensing the trademark back to the Mongol Nation (or another motorcycle
club or anyone else) anytime soon. Without use in commerce, the
trademark will go abandoned and trademark rights will cease. Unlike real
property or monies seized that can be sold or otherwise allocated to
different uses, respectively, trademarks cannot be so easily converted
in the present case because it requires the transfer of the goodwill
behind the business as well. No matter the reasons proffered for the
forfeiture, the net effect of the criminal forfeiture would be to seize a
legal asset and destroy it in the process.”
Finally, “Taking the Trademark Creates an Enforcement Nightmare.”
Everybody doesn’t have to read Kulik’s article but if you are reading
this now and you are a lawyer or a journalist you probably should. You can find it here.