Motorcycle clubs fight to keep their trademark ‘colors’

The media photographs confiscated motorcycles that belong to the Mongols motorcycle gang in this Oct. 21, 2008, photo, at a news conference in Los Angeles.
The media photographs confiscated motorcycles that belong to the Mongols motorcycle gang in this Oct. 21, 2008, photo, at a news conference in Los Angeles. AP

Federal prosecutors have dropped a controversial bid to seize the trademark owned by a motorcycle club that casts itself as the “Devils Diciples.”

But while the development this week cheers the Midwestern group and the California-based lawyer who represents them, it does not entirely slam the brakes on other trademark challenges involving motorcyclists’ fierce and distinctive logos.

Still in the government’s cross hairs, notably, is the trademarked logo for the Mongol Nation, a Southern California-based motorcycle club whose intellectual property has been sought by federal prosecutors since 2008. A federal appellate court is now considering the Mongol Nation case.

“These trademark cases are important to the clubs, whose free association has been threatened by the attempts by (prosecutors) to enjoin use of their membership (marks) by non-indicted persons,” Devils Diciples attorney Fritz Clapp, a former longtime Sacramento resident, said Tuesday.

Members of the Mongols and the Devils Diciples call their organizations clubs, while law enforcement officials refer to them as gangs or criminal enterprises.

Prosecutors began trying to seize the Devils Diciples’ trademark as a byproduct of a criminal case that culminated in the February convictions of six Devils Diciples leaders on drugs, firearms and other charges.

The prosecutors’ decision now to leave the Devils Diciples’ trademark alone was noted through filings made Monday in federal court in Detroit. The prosecutors explained in one filing that they had “learned the identity of the trademark’s owner,” who has not been charged with crimes.

“Generally, the government can only criminally forfeit property, under an applicable forfeiture statute, in which a defendant in a criminal case has an ownership interest,” Assistant U.S. Attorney Linda Aouate explained Tuesday.

Most law enforcement asset-forfeiture efforts target conventional property. As part of their original Devils Diciples case, prosecutors in October 2014 itemized property they wanted to seize, from Glock handguns and Mossberg shotguns to slot machines and “two Devils Diciples bandanas.”

At the end of the 32-page property listing, prosecutors included the club’s trademark.

That trademark, including the deliberately rebellious spelling, consists of an upper arc framing the words “Devils Diciples,” a design with two crossed pitchforks over a spoked wheel, and the letters “M.C.”

If prosecutors had prevailed in their trademark-forfeiture effort, the government could have eventually owned the mark and protected its property interests, such as by demanding that club members surrender their treasured designs.

“I was pleased the (prosecutors) easily recognized that the facts and law favored my client, so that the matter need not be submitted to the court for decision,” Clapp said.

A 70-year-old graduate of the University of the Pacific’s McGeorge School of Law, Clapp has also represented the Hells Angels in protecting that motorcycle club’s intellectual property. Sometimes this has entailed taking the legal offensive.

Over the past eight years, the Mongols trademark cases established important precedents regarding forfeiture of collective membership marks and the implications of free speech and association.

Fritz Clapp, intellectual property attorney for the Devils Diciples

In 2013, for instance, the Hells Angels Motorcycle Club sued the Dillard’s department store chain and a clothing line associated with the rapper Young Jeezy over the use of the club’s trademarked “Death Head” logo. The lawsuit, filed in Sacramento federal court, was resolved in a confidential settlement.

Other motorcycle clubs – ranging from the Thug Nomads and the Persecuted Souls to the Knights of Fire and the Immortal Soulz – have likewise secured trademarks for their names or logos, U.S. Patent and Trademark Office records show.

In the Devils Diciples case, U.S. Attorney Barbara L. McQuade of the Eastern District of Michigan said the individual defendants were “responsible for violence and trafficking in methamphetamine in Macomb County and across the country.”

The still-simmering Mongol Nation case began when then-U.S. Attorney Thomas O’Brien unveiled in Los Angeles an indictment of 79 Mongols for a variety of offenses. As part of his campaign, O’Brien sought the Mongols’ trademarks.

“If the court grants our request . . . then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back,” O’Brien said at the time.

All but two of the original 79 defendants were eventually convicted. Prosecutors failed, though, in their attempt to seize the club’s trademark, an effort they are trying to revive at the 9th U.S. Circuit Court of Appeals.

“In an audacious, novel move, a select group of the gang – so-called ‘full-patched’ members – federally registered two marks used by the gang to identify members and to terrorize enemies,” prosecutors wrote in an Aug. 8 filing.

The Mongol Nation has until Nov. 10 to respond.

CORRECTION: An earlier version of this story wrongly identified the club that lawyer Fritz Clapp represents. He is an attorney for the Devils Diciples.

Michael Doyle: 202-383-6153, @MichaelDoyle10