Piercing the Power of the Patch: How Trademark Law Could Diminish the Power of Gang Insignia

• DOI: http://doi.org/10.1111/j.1747-1796.2010.00408.x
• Date: 01 January 2011
• Published date: 01 January 2011
• Author: Carol Fleischhaker

Piercing the Power of the Patch: How Trademark

Law Could Diminish the Power of Gang Insignia

Carol Fleischhaker

Dalhousie University

The article, ‘‘Piercing the power of the patch: How trademark law could diminish the power of gang insignia’’,

broaches a new and unique topic for both intellectual property and criminal law academics and practitioners.

The article examines trademark and copyright law in the context of criminal organizations, such as gangs. It

sets forth the problem of enhanced gang reputation due to trademark and copyright protection, and analyses

the extent to which trademark and copyright laws enable and empower gangs to use their insignia within non-

commercial and commercial illegal enterprises. The article suggests nine ways in which amendments to the

Trademarks Act,Copyright Act and Criminal Code will diminish the power of gang names and insignia, such

as through government trademark registration of unregistered gang insignia; expansion of the definition of

‘‘offensive’’ and ‘‘scandalous’’ marks; stringent proof of the purposes of a mark; limitations on renewal and

registration of a trademark; forfeiture and expunging trademarks used in a criminal offence; government

expropriation of registered trademarks used in a criminal offence; mass distribution of gang trademarks; use

of a trademark or trade name in different trade areas in order to deteriorate distinctiveness; and commercial

use of a gang mark by law enforcement.

Keywords trademark law; gang insignia; organized crime; criminal organization

The power of trademark symbolism to induce consumer action stretches beyond marks in

commerce. Within the criminal milieu, gangs often use their name or insignia not only to identify

themselves as a group and to declare themselves to others but also to advertise their reputation by

wearing it on their sleeve—or on their back. Gangs use their names and insignia to commit crime.

They intimidate and instill fear in non-gang members in both the criminal subculture and

conventional society in order to effect their criminal endeavours. Over time, the violent and

intimidating reputation of gangs builds, and simply the mention of their name or the display of

their insignia causes fear and produces acquiescent behaviour in others. This fearsome reputation

facilitates gangs in their criminal activities—both commercial and non-commercial. Trademark

and copyright laws enhance these gang reputations, and thus contribute to the social problem that

is gang violence and crime.

Some gangs have legally registered their names and insignia in order to protect their

reputation. For instance, the Hells Angels Motorcycle Club, and the Mongol Nation Motorcycle

Club Inc. have registered their trademarks.

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Some gangs have launched lawsuits to prevent

infringement. The Hells Angels successfully sued Disney Pictures to change a movie script, and

legally forced an author who used the Hells Angels winged death head on the cover of his book

(Edwards, 2009; Mendleson, 2009). The Hells Angels only had to legally threaten Marvel Comics

in order to prevent them from using the name ‘‘Hell’s Angel’’ for one of their comic characters.

John Freeman, a former editor of Marvel Comics, explained in a blog:

Ah, Hell’s Angel—the most tortured superheroine in the Marvel UK pantheon, ever.

Legal threats from the Hells Angels (I kid you not) forced the name cahnge [sic] and

prompted legal searches to ensure all other MUK character names weren’t infringing

The Journal of World Intellectual Property (2011) Vol. 14, no. 1, pp. 21–53

doi: 10.1111/j.1747-1796.2010.00408.x

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other rights holders (it was okay to name a comic Warheads but we weren’t to try

copyrighting the name on a missile . . .) . . . (Freeman, 2008).

The legal power of gangs to prevent the use of their names and insignia outside the criminal

milieu demonstrates the degree of protection afforded to gangs by trademark and copyright laws.

The legal protection of gang reputations remains a force to be reckoned with.

This article analyses the extent to which trademark and copyright laws protect gang insignia

within non-commercial and commercial illegal enterprises. It examines the extent to which

trademark and copyright laws prevent law enforcement from using gang insignia. It demonstrates

the power of gang insignia generally, and the ways in which trademark and copyright laws enhance

this power.

This article also recommends amendments to the Trademarks Act

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and the Copyright Act

3

in

order to negatively affect the ability of gangs to engage in criminal enterprises by diminishing the

power of their patches. It suggests that the government register unregistered gang insignia in order

to assume control over the reputation of those gangs. It proposes an expansion of the terms

‘‘offensive’’ and ‘‘scandalous’’ in section 9 of the Trademarks Act in order to prohibit the

registration of gang marks used in connection with criminal offences. It recommends augmenting

the laws that regulate the registration and renewal of trademarks, and requiring stringent proof of

the purposes of a mark within section 30 of the Trademarks Act. It suggests increasing the power of

the registrar to expunge and expropriate marks associated with the commission of a criminal

offence. It proposes governmental expropriation of registered trademarks where such marks have

been used in connection with a criminal offence. It suggests statutory amendments that would

allow law enforcement to diminish the power of gangs through mass distribution of their names

and insignia; through the use of a gang trademark or trade name in different trade areas; and

through the use of a gang mark in illegal commercial transactions, such as drug transactions and

extortions.

The Power of the Patch—A Real Problem

The ‘‘power of the patch’’ refers to the power of the reputation of a gang. This power enables a

gang to effect its purposes through intimidation and violence. The ‘‘patch’’ refers to gang names

and emblems that adorn clothing and accessories worn by gang members, and to a more limited

degree, worn by gang associates. When gang members wear the ‘‘patch’’ during criminal activities

or during violent and intimidating activities, the fearsome reputation of the gang seeps into the

‘‘patch’’. Thus, the ‘‘patch’’ symbolizes the reputation of the gang. Consequently, gang members

who wear the ‘‘patch’’ need not verbally identify themselves to others as a gang member in order to

receive the power ascribed by the reputation of the gang.

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The ‘‘patch’’ becomes synonymous with

the gang and its reputation.

The power of the patch has long been recognized within the criminal milieu and law

enforcement circles, and more recently, has been acknowledged by courts of law across Canada.

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For instance, in the criminal organization trial Regina v Grant,

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the Manitoba Court of Queen’s

Bench held that simply wearing the ‘‘colours’’ of a full member of the Hells Angels is sufficient to

intimidate most people.

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The ‘‘colours’’ or the patch of a full member of the Hells Angels consists

of a three-piece patch sewn onto a leather or a jean vest. The top portion of the patch, or the ‘‘top

rocker,’’ has the name ‘‘Hells Angels’’. The middle portion has the death head logo and the letters

‘‘MC’’ for Motorcycle Club. The bottom portion of the patch, or the ‘‘bottom rocker’’, has the

member’s territory, which, in Canada, is a province.

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The Journal of World Intellectual Property (2011) Vol. 14, no. 1

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Piercing the Power of the PatchCarol Fleischhaker

In another criminal organization trial, the Ontario Superior Court of Justice in Regina v

Wagner,

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accepted the evidence of police agent Steven Gault, who described the power of the patch

in relation to the Hells Angels:

32 In viewing Mr. Gault’s evidence, when Mr. Gault was asked under oath on October

21, 2005, whether the current Hell’s Angels Motorcycle Club of Canada was what the

members tried to portray themselves as—simply a bunch of old guys riding

motorcycles—Gault replied as follows:

‘‘That couldn’t be farther from the truth. There’s very—I can’t even think of one, uh,

that doesn’t break the law in some way, shape, or form. Whether it’s on a low level or a

higher one. As with Niagara, they have complete control of the coke dealing in the

whole Niagara region. Anyone steps in there, they’ll kill him point blank. You don’t

play with their game. So they’re—all their lives are built upon drug dealing. Guys like

Mr. Bill—‘‘and in the evidence before me, a Hell’s Angel member from Oshawa’’—as

well, do take bikes and drug dealing. The patch is used non-stop for, like, extorting

people out of their bikes. I’ve seen lots of guys there. Things to get people in debt. A little

bit of coke and they take their bike. Anything you can. The patch—‘‘referring to the Hell’s

Angels patch’’—is muscle and everybody backs it.’’

33 In a follow-up question he was asked: ‘‘Why would someone want to join the Hell’s

Angels Motorcycle Club today?’’ His answer was as follows:

Because you’d have the power with the patch. You might be a low-level drug dealer and

don’t want to be juiced anymore by the Club and have to pay them. You might have just

made a few enemies and you want some backing. I’d say most of it’s money. That once

you have the patch, you’re free pretty well to do anything you want. Anybody will back

you.

34 As I have indicated, I accept Mr. Gault’s evidence on these points and find as a fact that

membership in the Hell’s Angels Motorcycle Club allows the individual, as a full-patch

member, to commit criminal acts for profit with the full backing and benefit of the Club.

Both the individual member and the Club share in the benefits. Membership gives you the

power of the patch.As Mr. Gault says, it gives you the power to extort people and to deal

drugs. Both types of these offences are serious and the maximum penalty for such

offences would be more than five years [Emphasis added].

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The evidence of Steven Gault not only explains the essence of the power of the patch—that the

power of the reputation of the Hells Angels organization enables members to effect their criminal

purposes through intimidation and violence. His evidence also reveals the significant role that gang

insignia plays in conducting criminal enterprises. The power of the patch enhances the ability of

gangs to commit criminal offences, and over time, this power allows gangs to monopolize

territories and trades.

For these reasons, gangs often have very strict rules regarding who can use and wear the gang

name and insignia. They recognize that use by non-members can dilute the power of the patch. For

instance, the Hells Angels Motorcycle Club Corporation in Oakland, California, owns the

‘‘colours’’ of the Club, and has rules and policies regarding their use.

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Each Hells Angels chapter

in Canada must sign a licensing agreement with the Corporation, permitting its members to use the

trademarks, and members must sign documentation acknowledging such ownership.

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At the trial

of two Hells Angels for extortion and criminal organization charges, the Ontario Superior Court of

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Piercing the Power of the Patch Carol Fleischhaker