“…For me? As what? Tough guy? I don’t need tough guys. I need more lawyers…”: Intellectual Property Law in Criminal Matters

There is a popular vintage Harley Davidson t-shirt that says “Tough Guys Finish First.”  That may be true.  But, sometimes, to finish first, one does not need more tough guys; one needs more lawyers, as a crime-related matter involving the Mongols Motor Cycle Club has recently shown.  So today we thought that we would use Michael Corleone’s observation as the title of our discussion of how creative intellectual property lawyering has impacted that recent Mongols’ matter in a California federal court.  [Not only is the Corleone quote apt here, but it is often useful in any context to start with a quote from The Godfather, which has been described as the “sum of all wisdoms” and “the source of all knowledge.”  So it is probably fitting that we lead this piece (or any piece) with a Godfather quote or reference, especially since it has worked for us before.]

The notion that trademark law is relevant to criminal law is not a new one, and the concept that controlling the marks or identifying symbols associated with an alleged criminal enterprise are also not new.  Indeed, it has been celebrated in cinema and conceded in real life. See, US v. Saunders, 826 F. 3d 363, 375 (7th Cir.  2016 ) (“But the court ultimately accepted that … he used red tape to wrap his heroin in order to distinguish it, and that he was known on the street for having excellent quality heroin because of this ratio”) (emphasis added).  But law enforcement efforts to seize control of, and limit the use of, group identifying marks raise sensitive free speech and related issues that are worth considering.  And in the end, no matter how many tough guys were within the Mongols’ ranks, it was about having the right lawyers involved.  Indeed, those lawyers made their mark by making the right arguments to let the Mongols, who were on the verge of losing the rights to their name, keep their mark.