Court Order Seizing Copies of Mongol Biker Gang Symbol:

The federal government is prosecuting many members of the Mongols biker gang for a wide range of very serious crimes. But the unusual twist is that the Mongols symbol was apparently officially trademarked by the Mongols, the federal government is seizing the trademark as an asset, and a federal court has just ordered the criminal defendants, plus their "family members[] and those persons in active concert or participation with them," to

surrender for seizure all products, clothing, vehicles, motorcycles, books, posters, merchandise, stationery, or other materials bearing the Mongols trademark.

This strikes me as unjustified by trademark law, and violative of the First Amendment. The First Amendment first: The court is ordering the seizure of certain expressive materials -- materials that contain a particular symbol -- precisely because they contain that symbol. These materials don't constitute commercial advertising, which is less protected under the First Amendment than is other speech. (Trademark law is often justified because it tends to apply to commercial advertising, but this isn't so here.) Nor do they fit within any First Amendment exception.

It's true that the symbols could be used in certain ways that are constitutionally unprotected, for instance if someone is using the symbol to communicate to people in a particular criminal conspiracy (e.g., "you'll know your drug courier because he'll be wearing a Mongols patch on his right front pocket"), or to convey what the law views as a "true threat" to a particular person. The same can be said of swastikas, Confederate flags, or peace symbols. But that would justify punishing the people who are using the symbol in a particular illegal way, upon proof that they are so using it -- not a demand that all copies of the symbol be surrendered. (Likewise, if someone is convicted of a crime, his speech may be restricted even while he's not in prison but is out on probation or parole. But that, too, requires a criminal conviction, and not just being indicted, or being a family member of an indicted person.)

Now courts do allow the seizure of trademarked goods, generally goods that are intended to be sold, when the goods were produced without the trademark owner's permission. In some situations, that's clearly constitutionally permissible, for instance if a store is selling counterfeit trademarked clothing. The counterfeit trademark conveys false information to the consumer about the origin of the clothing, and thus the products as they are displayed by the seller qualify as constitutionally unprotected false commercial advertising (here, the trademark displayed on the clothing in the store is itself advertising for the clothing).

In other situations, the First Amendment justification for seizures of trademarked goods may be less clear. But in any case, the rationale is that the goods were produced without the trademark owner's permission, and are thus contraband. Here, unless I'm missing something, the goods were produced with the Mongol Nation's blessing; it's just that the new temporary (and perhaps eventually permanent) owner of the trademark now wants to stop their use.

I'm not a trademark law expert, but I'm pretty sure the new owner -- whether government or not -- isn't authorized by trademark law to bar such uses. For instance, if you bought a USC T-shirt with USC's permission (or got it for free from USC), and now USC's trademark is acquired by someone else who doesn't want the T-shorts worn, the new owner can't retroactively claim all the shirts are contraband.

The new owner might be able to bar the commercial manufacturing and distribution of new shirts with the symbol. But it certainly can't stop the wearing of shirts that had already been produced and distributed with USC's blessing. And it probably can't even stop the resale of such shirts (or other materials), because the first sale doctrine allows someone who lawfully acquired trademarked goods to resell them (at least so long as the resale isn't misleading).

Nor does trademark law, to my knowledge, have any doctrine that somehow avoids these results when the initial trademark owner committed various crimes, or when the trademark symbolizes criminality. At most, trademarks that are associated with crime could be denied registration because they are "immoral or scandalous," but that would limit the rights of trademark owners who want to sue for infringement -- it wouldn't increase anyone's power to block the wearing of such marks.

It's not clear to me that the government can ever use intellectual property law simply to suppress symbols that the government thinks (even rightly thinks) are supporting and promoting evil behavior. In such a case, the Court's justifications for essentially recognizing intellectual-property-based exceptions to First Amendment protection (e.g., preventing consumer confusion, maintaining some commercial property owners' rights to control the associations of their trademark, providing an incentive to create, and the like) wouldn't apply, and I don't think the exceptions should apply either.

But in any event, even if the government has exactly the same power to enforce seized trademarks, for any reason it wishes, as a private property owner would have to enforce its trademarks, I don't see how the power would extend to this situation.

Finally, I should stress that none of this is a criticism of the general prosecution of the Mongols -- it sounds like many of them committed very serious crimes, and they should be seriously punished for them. But I don't want to see this case become the occasion for further broadening of intellectual property-based speech restrictions, or for the recognition of a government power to suppress symbols (even ones that symbolize bad organizations, and that are often used by bad people).

For a newspaper account of the matter, see here.

Order Against Family Members:

One thing that struck me about the Mongol trademark injunction is that it applied not just to the parties -- there, the criminal defendants and those "in active concert or participation with them" -- but also to the defendants' "family members."

What justification can there be for imposing a speech restriction on someone, or even an order that he surrender property more generally, because he's a "family member[]" -- e.g., sibling, cousin, adult child, parent of an adult child, etc. -- of a criminal defendant? I would think that people's free speech rights or property rights generally can't turn on whom they happen to be related to. (Spouses are a different story, because that's a voluntary legal arrangement; likewise, parents and minor children have mutual legal obligations; but I'm speaking here of other family relationships.)

Perhaps in some situations, such as with antinepotism policies, the government acting as employer may indeed deny people certain benefits (such as a government paycheck). But when it comes to the government acting as sovereign, ordering the seizure of property, or restricting the display of symbols, how can one's relationship with a criminal defendant diminish one's legal rights? On top of that, given that this is a court order, which usually applies only to parties and to those who are indeed acting in concern with the parties, how can someone who isn't before the court be bound by the order just because of the family connection? And, finally, exactly what would "family member[]" mean in such an injunction?

Are such injunctions commonplace (even outside the quite unusual context of the government trying to seize copies of symbols)? Have courts concluded that they may indeed impose legal obligations on "family members" of parties? Has there been some evaluation by appellate courts of whether such obligations are legally permissible? I'd love to see any specific legal authorities on the subject.