Monday, 11 July 2011

Can trade mark law be used to control criminal gangs?

It sounds like a silly question: trade mark law exists, almost, in a different universe from criminal laws against organised crime. Of course, there's a huge overlap especially in the area of counterfeiting, but the bright idea of the US law enforcement authorities to forfeit a trade mark used by a motorcycle gang called The Mongols and then sue members for infringement if they had the temerity to display it in public (reported on the Intellectual Property Brief blog) seems doomed to failure. Indeed, it might even be said that it deserves to fail. Trade marks (as IPB points out) are all about preventing confusion in the marketplace, so how can preventing someone using a distinctive sign help that? And anyone who is prepared to announce his membership of a gang (which is not as far as I can see an illegal organisation anyway) by wearing the insignia is unlikely to be worried about infringing a trade mark.

Another instance, perhaps, of someone ascribing magical powers to intellectual property - and an example of state-sponsored absolutism.

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