An anonymous commenter to a previous blog post provided a link to today’s opinion finding that the government seizure of the Mongols trademark in United States v. Cavazos was not proper under the RICO statute. You may recall it was widely reported back in October, 2008 that the government had seized the registered trademark of a biker club, the Mongols, and obtained an order allowing the ATF to seize all products, including clothing, bearing the Mongols trademark. It seemed a creative ploy even at the time, and props for trying.
Today’s decision was in a civil case brought by a member of the Mongols Motorcycle Club, who filed a motion for a preliminary injunction alleging that he cannot wear his colors because the government will seize them – indeed, the ATF has seized items bearing the trademark from those not charged in the Cavazos action. After finding the club member had standing to challenge the seizure order in the RICO case, the court went on to conclude that the trademark seizure was improper. The Mongols trademark was originally owned by an unincorporated association, Mongol Nation, and was assigned to a corporation, Mongols Nation Motorcycle Club Inc. Under California law, property acquired by an unincorporated association is property of the association, not the members individually. Since a forfeiture under RICO is in personam, not in rem, and the unincorporated association was a third party to the RICO action, it was improper for the government to have seized the trademark.
Criminal and RICO law are not my forte. Any comments on how this opinion affects the Cavazos action greatly appreciated. I also found it interesting that it was the same judge on both cases, and would be interested to know whether that was by design or happenstance.
Every trademark practitioner should also read the section about how the seizure of a collective mark (or rather seizure of the clothing bearing the mark) implicates the First Amendment freedom of speech and association.
Rivera v. United States, No. 2:09-cv-2435-FMC-VBKx (C.D. Calif. Aug. 3, 2009).
© 2009 Pamela Chestek