You may or may not have read about a certain motorcycle club having some legal problems lately. The government is trying to shut them down by seizing their patch and enjoining (preventing them through a restraining order) them from wearing it. This article is not about that club, but the legal issues in general.
Before I begin discussing this article I must state that I am not talking about any one motorcycle club or organization in this article, I am just writing in hypothetical’s. For purposes of this article I will make up a motorcycle club called “The Elmer’s MC”
Let’s say hypothetically that the Federal Government alleges that The Elmer’s MC is a criminal organization, and moves to seize club property under civil forfeiture statutes, because the property was used in the commission of a crime, or were gained from the fruits of criminal activity?
Can they do this? Yes they can. Is it an ominous trend? Yes it is. Has the government been seizing all sorts of private property under civil forfeiture statutes? Yes, for a long time. Do you ever really own property in the United States of America? Apparently not any more. The government can by a preponderance of evidence, basically take anything they want from you. We really in effect own nothing in the United States of America anymore, this is what is has come to.
Is a Federal Trademark or Copyright property that can constitutionally be seized by the Federal Government under civil forfeiture statues; that is the question!
My reading of the various statutes and case law involved leads me to believe that the government can in fact seize Federal Trademarks and Copyrights under the civil forfeiture statutes, because the Trademark and Copyright is in fact a tangible thing (property for the time you own it.) that can be assigned, and/or licensed for consideration. (Money, etc.)
Furthermore, as a valuable legal right that is analogous to property, it can arguably be seized just like any other piece of property.
Now let’s say that the government now wants to get an injunction which prohibits The Elmer’s MC from wearing its trademarked or copyrighted patch, because is has been seized by the government and is now government property. They probably could get an injunction under civil seizure and intellectual property law, but does this action violate our First Amendment Right to Free Speech. I would say that it does, and the right to free speech is a much more important right in this particular circumstance.
Let me explain. Let’s say arguendo that The Elmer’s MC is the most horrible and criminal organization in the world. Do we want to allow the government to be able to yank clothes off anybody that is wearing Elmer’s MC apparel just because they are trying to shut them down?
What if the government decides that Walmart is a criminal organization? Are they going to be able to take Walmart shirts off of anyone that is wearing one? This idea is ludicrous and ominous. If we allow this to stand, the government will not only be able to take your property with a very minimal burden of proof, (preponderance of the evidence) but they will also be able to tell you what you CANNOT wear if they want.
Look, I am a law abiding guy, but I am also a United States Constitution type of guy. I hate the Nazi Swastika with a passion, yet under our constitution, the government cannot ban someone from wearing one even though it is despicable.
The Elmer’s MC should be able to wear anything they want to wear so long as what they are wearing is not defamatory, it is not meant to incite an immediate riot or criminal activity, and it does not violate someone’s civil rights, even if they are worst arch criminals of the world.
Why, because once you let the government take away a right they will take away 10. Soon regular Joes walking the street will be subject to this same horrible precedent.
Have we become that Police State that we all feared when we saw the movie 1984, are we are allowing are freedoms to be sucked from us? Yes.
It is my position that the government in this case has gone too far. No matter what The Elmer’s MC did, the government should not have the right to tell The Elmer’s MC members, or any member of the public what they can or cannot wear. The government’s action should be held to violate the United States Constitution’s 1st Amendment Right to Free Speech.
Yes, it can logically be argued that the government has the right to ban The Elmer’s MC from wearing a seized trademarked or copyrighted patch under present law and precedent, but the argument that government should NOT have the right to tell us what we can and cannot wear does not really take much argument at all in a free society. In other words, the Right to Free Speech should take precedence over the civil forfeiture statutes, and trademark law in this particular circumstance. If we open up Pandora’s Box, where will it end?
This precedent would allow the government to seize any trademark or copyright with a minimal burden of proof and without having to even try a person or organization for a crime, or prove that they are guilty of a crime. Is this the Untied States that our founding fathers envisioned? I think not!
Therefore I say to the government look; if the Elmer’s MC or its members have committed crimes, then they should be held accountable in a Court of law in front of a jury of their peers. If they are convicted then punish them. However, this business of convicting an organization or its members in the media without a jury trial, and then preventing them wearing an item of clothes by going to a Judge for an injunction under civil forfeiture statutes, is flat out un American and wrong.
Many of you may be saying look; the Elmer’s are a bad bunch and need to be punished. Trouble is what if you are someday falsely accused of something. I am not saying the Elmer’s were falsely accused, I don’t know. However, let’s say it is you. The government than seizes your money so you cannot hire a lawyer to defend yourself, they then tell you that you cannot wear Levis because all members of your organization wear Levis, and then you plea bargain out because the public defender does not have the resources to defend you. How is this justice? Civil forfeiture statutes are just plain wrong even though they have somehow been upheld. The forfeiture should occur in a criminal setting with the same burden of proof as a criminal action.
The argument by the prosecutor against the fictitious Elmer’s MC is ingenious. However, its effect would be downright un American.
Moral to the story……….. If you are a Motorcycle Club like the Elmer’s, do not Trademark or Copyright your name and patch!
The biggest evils against man have or were justified under the premise of doing good. In the case of the Elmer’s, they are probably no angels, but the rights you take away from them; you take away from all of us.
The rights given to us through the United States Constitution are meant to protect the few from the many, when the many want to violate our rights!
No Mr. Government, we don’t want you to have the power to tell us what we can and cannot wear!
By California Biker and Motorcycle Lawyer Norman Gregory Fernandez, Esq., © 2008
Welcome, my name is 
I Agree. “If you take a little at a time, eventually the people won’t notice.” I don’t know where I heard this phrase, but seems real.
Good article, it seem that in our country we are loosing our
civil right and our freedom, why many kids in the early 20’s are
are dying to FREE Iraq when we are loosing or freedom here.
The Patriot Act was the first step to a facist and a
police regime, are we going to be worst that the KGB during
the cold war in the USSR or the Nazi Germany? We are getting
close to it and we need to fight for our rights.
FREE AMERICA!
Ref
Regarding this case, I see you suggest not copyrighting a patch, on a purely academic level, surely if a patch was NOT copyrighted then the police or government could then buy their own copyright for the said patch and do what they liked with it, thereby ending up at square 1?
Great site, keep the information coming!!
L/R
Izzy Wildheart
We are in danger of losing more rights. People vote and think before you vote this year. We could very well be under socialism after this election. One candidate for President is a stark reminder of when Peron took over Argentina. People are buying guns at a record breaking pace in the State of Florida. Talk radio may not even be allowed after this Presidential election and that is hitting at the First Amendment. Now patches from motorcycle clubs………sounds like select groups are being targeted. Great article Norm.
motorcycle gang colors are not covered under the first amendment.I can not wear their colors because I am not a member and they will not let me.If anyone could wear them then the government could not stop anyone from wearing them.Only members can wear them and that is why it is not free speech.
Very good article!!! There are still many of us out here fighting for the rights of all, We just need to work a little more close together!!!
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Well, I have mixed feelings about this issue. I think that you lose all rights in this country when you break the law. If you have gains from illegal activity, then it’s makes sense to me when it’s taken away. On the other hand, do I really want the government that much into my life and property?
very good article. i ride, and though i’m not a member of said ficticious m/c i am a known associate and have a few bros who are members. this is indeed becoming a police state. once they start taking, there’s no end. free speech, gun ownership rights; and yes, what to wear or not to wear. this is a very wary time in America. good work Norman!
Excellent article. In South Australia a little “social experiment” is under way where innocent people can go to jail for FIVE years for just associating with “elmers MC” on runs, social gatherings, etc. A political party has been formed to challenge our Govt. head on. Here is the site http://www.freeaustralia.org
MC’s can now be “declared” organisations under our “serious orgainsied crime and control act” meaning they become banned and outlawed.
What about if the club holds an international trademark? Could the US government still take away the copyrighted or trademarked item? It is a shame when our freedoms are constantly being eroded because of the governments lack of finding better ways to crack down on what they say is criminal organizations.
We hear about drug dealers, rapists, and murderers in the National Football League and in Major League Baseball everyday. Can a Judge just ban the Logo of a Sports Franchise if some of its Members are involved in Criminal activity? You may be saying ‘No’ because its different. Well I say it is only different because they haven’t done it yet! There are the same problems in Motorcycle Clubs that there are in all organizations. One can argue there is a criminal element in ALL organizations! The Sierra Club has tree sitters! Greenpeace folks are always in trouble for messing with whaling boats and whatnot. Your bowling league buddy might sell pot! Should you ALL go down for that? Should the government be able to take your shirt of your back?
Law Enforcement has much more Criminal Activity going on within than all the Motorcycle Clubs in the Nation put together! Only Difference is they can bury the Truth! When it comes to Motorcycle Clubs and criminal activity the big difference is, the stereotype & legend of Motorcycle Clubs is we are America’s bad boys and it just sells so damn good.
This law cannot be allowed to stand!!! I am sure some Sport Bike Clubs and AMA Clubs feel they have nothing to fear! I am sure many are thinking this has nothing to do with them, it’s only the Outlaw and 1% Clubs! They are thinking this isn’t about us “we are the good guys”. This always happens this way, take down the top levels first! The other levels will make excuses as to why it is not their fight and stand aside in apathy. All Bikers, everyone in fact – should join the fight now to stop this trampling of our constitutional rights to free speech and free association! You and your organization may be next!
I agree wholeheartedly with your article and many of the comments.
I was born and live in Canada. We are opressed here as you are in the USA. I proudly have my support sticker on my oil tank as many do. My small town Police Dept has not found the balls to pull me over and inspect my documents yet.
I should be able to choose whom I associate with and which organizations I choose to affiliate myself with without fear of repurcusssion.
IF, I break a law, by all means, take me to court and try me in front of my peers. If I am being tried on a “possible” association to an outlaw organization, that is a waste of everyones money and time.
Let’s take this a step further. If an executive from AIG, Coca-Cola, Disney or United Airways is found guilty of corruption should their trademarks be banned? At what level does an organization and its members become cognisant of its members being involved in criminal activity? As an example, if an executive from Disney or Coca-Cola is convicted of insider trading or any other crime does that trademark become banned? Good luck!!
Will the ride operators at Disney or truck drivers from Coca-Cola be implicated by mere asociation?
Great article! I am an associate of the real-life club involved in this issue, as well as a club in Australia that has been “banned”. I never thought I’d see the day that nations I considered the beacons of freedom (USA / Australia / & Canada) would become “police states”.
On this subject I have been looking for an answer to a related question that perhaps you can answer:
when we see police raids on clubs or individual members, what is the “legal justification” for their seizing of club colors, banners/flags, wall plaques etc?
Thanks for your time & great blog!
What can be done, outside of this club’s lawsuit, to stop or prevent this kind of boundary overstepping by LE.
What if they get Girls Gone Wild under RICO, are the police going to, ironically, ask girls to take their tops off right there?
What about Microsoft? Should they worry about their next round of Monopoly charges?
What real power do we have to stop them? Write a letter? Again, what can we REALLY do?
– Anthony.
Thanks for your comments Ref. Free America is right. God help those who are accused of a crime, they will seize their property before proving guilt. God help those who wear something the government does not like, they will seize the clothes off of their backs.
We are in a real ominous part of American history right now. It could go either way. Yes we need to fight terrorism and those who would usurp the United States Constitution both abroad and here. However, are we willing to give up what we so cherish as Americans in doing so.
This really is a somewhat political issue. There is a certain political party that claims they are conservative and for less government, yet every chance they get, they want to enact laws that take away our freedoms and grow the government in the process. We Americans are the suckers for letting it happen.
I say use the power of the vote, and the power for us to lobby our leaders to get the change we need.
In the end Ref, it could go either way here!
Norm
God Bless America; we may eventually lose her if we allow our freedoms to continue to be taken from us one by one!
Joe,
First off who is talking about a Gang? I wrote about a motorcycle club. Secondly, why would you want to wear a club patch unless you were in the club?
The 1st Amendment of the United States Constitution has to do with the government restricting free speech.
Anyway…..
Norm
Well if the government could do that then this would no longer be America. The government could trademark everything!
Norm
yeah i agree with Norman.
Well Ajlouny I see that you are posting from a New York P.I. Firm. If you are an attorney, you above all people should know that everyone in this country has rights pursuant to the United States Constitution. You are presumed to be innocent until proven guilty; you have the right to a jury trial; you have the right to an attorney if you cannot afford one; you have the right to freedom of association; you have the right to freedom of speech, etc.
If you are charged with a crime or accused of a crime, you do not lose all of your rights, you have many rights. Even if you are convicted of a crime you have rights.
The government should not be telling a person “not in jail” what they can and cannot wear. That is a violation of our freedom of speech rights.
I believe in law and order as well. The way it is going, we are moving towards a police state. Who wants to live in a police state?
Will the government take away a shirt that I am wearing if they don’t like it?
Come on, open your eyes!
Norm
Thanks for your comments Swilly,
Norm
Based upon what has happened to the Elmers in my hypothetical anything is possible am I not correct. Notwithstanding that fact, I think that which has happened to the Elmers will not stand up in Court or on appeal.
We will see.
Norm
Thanks for your kind words about the blog!
In the United States, legal justification depends on the situation. In most cases law enforcement has seized club property as evidence of membership in an allegedly criminal organization under Rico or for purposes of gang enhancements to State Sentences.
In the case of the club I mentioned in this article, “Intellectual Property” (club logo which was Trademarked) was seized by the government under civil forfeiture laws. We will see how it pans out, but I do think that this particular situation violates the First Amendment to the US Constitution. (Free Speech)
With respect to Australia, I cannot offer much insight. I do read about what is going on there but I do not know the laws there. Maybe an Australia attorney will chime in.
Norm
Well Anthony as I predicted in the first lawsuit regarding this case, the judge granted a restraining order enjoining the government from taking, confiscating, or preventing one member of the club any patches or insignia, who was not charged in the Rico action.
I suspect the same will happen for all other non charged individuals.
What can we do? Hire attorney’s to protect your constitutional rights.
I predicted the outcome of the case as you can tell form my article, however, there is a long way to go.
Norm