Law enforcement efforts to "break" an outlaw motorcycle gang have morphed into a bizarre and groundbreaking trademark dispute, which some legal commentators contend is an unprecedented and possibly unconstitutional overreach by law enforcement.
The dispute's origins began in October 2008, when a federal Grand Jury sitting in Los Angeles indicted 80 members of the Mongols Nation, LLC, a motorcycle club, for a variety of crimes including murder, narcotics distribution and conspiracy. Agents for the Alcohol, Tobacco and Firearms (ATF) raided locations in six estates and arrested several dozen Mongols members, seizing guns, motorcycles and drugs.
At each location where ATF agents served arrest warrants, they also sought out and seized members' personal jackets, patches and other items bearing the Mongols' trademarked logo.
The Special Agent in charge of the ATF's Los Angeles field office, pointed out the significance of the Mongols trademark to the prosecution.
"They live by that Mongols patch," he reportedly 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."
Ultimately, everyone named in the indictment pleaded guilty and received sentences ranging from several months to many years in prison.
But an interesting wrinkle arose during the prosecution of the 2008 case. Federal Judge Florence Cooper ruled that the federal government had no right to seize the Mongols trademark.
Judge Cooper later passed away in 2010, and the trademark aspects of the dispute were then assigned to Judge David Carter who agreed that the trademark was inappropriately seized, but suggested a proper way to do it properly to the federal authorities. That approach would require a new indictment because the forfeiture remedy under the RICO Anti-Racketeering statute was not plead in the prior indictment.
As a result, Judge Wright, who heard the 2008 case, is now hearing the trademark dispute in the context of a more recent 2013 indictment that charges racketeering.
Now, the attorneys for the Mongols have sought to disqualify Judge Wright, claiming that he is unfairly "biased" against their clients. At the core of their motion is an off the cuff comment that Judge Wright made on the record about how he "reluctantly" ruled in the Mongols favor on the trademark issue previously.
The interesting issue is that the federal government is not only claiming that it is entitled to seize the trademark registration originally owned by the Mongols, but that it is entitled to seize physical items and personal effects that utilize the logo such as jackets and patches.
Essentially, the government is attempting to hijack the seizure aspect of anti-counterfeiting remedies and utilize it for punitive measures. That approach raises very interesting-- and disturbing--constitutional issues, say legal commentators.
Tuesday, February 18, 2014
Wednesday, January 22, 2014
Over the last several weeks, news reports began to circulate that King.com Limited, the software developer that designed the hugely popular "Candy Crush Saga" game, had trademarked the term "CANDY" in the United States, and had begun to send cease and desist demands to developers who were using the term "candy" in connection with other, unauthorized applications.
The developer is also the creator of PetRescue Saga and the FarmHeroes Saga.
Yesterday, the Los Angeles Times reported on the more accurate status of the matter.
Namely, the game maker had applied for a federally registered trademark for the word "CANDY" nearly a year ago, and on January 15, 2014, the application was "approved for publication" in the Official Gazette.
This status means that the public has thirty (30) days within which to file any formal oppositions to the pending trademark application.
If, after that period, no one objects (or any formally litigated opposition is unsuccessful), the application will proceed to receive a federal registration.
To protest King's trademark application, several game developers have reportedly created a "Candy Jam" protest website that encourages others to create unauthorized games themed around "candy." Extra credit may be offered to those who also use the words "scroll", "memory", "saga", "apple", or "edge".
One of the creators of the protest website reportedly told the Los Angeles Times: "Reaching a point where a company is allowed to trademark a common word is complete nonsense. You don't need to have a great understanding of the laws to understand that this is ridiculous and totally unethical."
But these protesters are legally incorrect. During the prosecution of the application, the U.S. Trademark Examiner conducted an exhaustive search and found that the word "CANDY" is not commonly nor descriptively used in connection with any other mobile digital applications.
The Examiner did find an existing trademark for "KANDY" in one of the classes of services at issue, but that conflict seems to have been resolved.