First Gang Injunctions, Now Trademark Infringement
Prosecutors have tried various means to go after gangs, as it is often difficult to find witnesses willing to testify against gang members. Gang injunctions, like the one I helped draft against the Dog Pound gang while interning at the DA's office, allow the police to pick up any gang member for engaging in any disallowed activity in the "safety zone" described in the injunction.
The US Attorneys have a new tactic. They are going to seize not only gang property, but the gang's trademarked name. Once the trademark forfeiture takes place, the police can take any property from a gang member that bears the trademarked gang name and charge him with trademark infringement.
As the article mentions, sounds like a clever idea, but seems bound for court battles.
Labels: Random
posted by BlondeLaw @ 8:16 AM
5 Comments:
It seems to me like that creative use of trademark law might violate the rights of free speech and association under the First Amendment. That's bad news, in my opinion. If we can't control crime without destroying rights, then we don't deserve those rights.
And apparently others have felt similar inklings about trademark law, even outside this particular context:
"[An] article [by Bill McGeveran, a University of Minnesota law professor,] makes a compelling case that, while courts in trademark cases ultimately tend to reach results that protect free speech against trademark overreaching, they do so in a muddled way that makes it hard to resolve cases quickly and cheaply and leaves speakers vulnerable to bullying through cease-and-desist letters."
The free speech issue aside, I was wondering about seizing something that is not physical property. I don't know anything about forfeiture laws. That seems odd to me. Are they also going to seize the gang's reputation of being bad asses???
I would love to read an appellate opinion discussing whether one's "reputation for being a bad ass" is a constitutionally cognizable property interest.
One hopes that such an opinion would be written by the likes of Alex Kozinski or Richard Posner.
If you can show me any appellate opinion written by Posner that contains the phrase "bad ass", I'll treat you to dinner at Ruth's Chris. ;)
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