Hells Angels pick fight with Amazon.com (over trademark infringement)

Posted by | August 26, 2011 | Disputes, General | 3 Comments

The World’s Most Famous Motorcycle Club (the Hells Angels — in case you’ve been living in a cave for the past sixty some odd years) filed a trademark infringement lawsuit on Monday against Amazon.com, Wildfox Couture and others for selling this T-shirt manufactured by Wildfox:

The shirt appeared on Wildfox’s website under the description “Hells Angels Hippie Crewneck T.”  Um, excuse me, but what the hell is a Hells Angels hippie and how on Earth did the people at Wildfox come up with that name?  Other defendants’ websites listed the shirt as the “Hells Angels Tee,” which, while more egregious from a trademark standpoint somehow seems less offensive to the Hells Angels.  Not that hippies are offensive, mind you; they’re my tribe.

Now you may wonder how anyone could consider this use a trademark violation, which I think I can explain.  But first, a bit of backstory in the form of a disclosure.  In a past life, I was the Hells Angels’ trademark attorney.  Yup, you heard that right.  I represented the Hells Angels Motorcycle Corporation (HAMC) for 3 years — from 2003 to 2006 — solely in their intellectual property matters.  Ok, now that my past life has been exposed, onto my explanation.

HAMC owns all of the Hells Angel’s IP assets, which it then licenses to its Charters and their members.  Primarily, the HELLS ANGELS mark (and the Club’s Death Head logo) are collective membership marks.  A collective membership mark indicates membership in an organization.  Such marks are used by the organization’s members to indicate their membership therein.  Of the approximately 2,126,000 LIVE trademark records in the USPTO’s TESS database, only 4,700 (roughly 4.5%) are collective membership marks.

The first federal trademark registration of HELLS ANGELS (& design) for “indicating membership in an association of motorcycle drivers” issued in 1980.  The HELLS ANGELS collective membership word mark became registered in 1982.  Common law rights in the mark stem back to 1948.  HAMC also owns two federal registrations for HELLS ANGELS for apparel, found here and here.  All told, HAMC owns seven U.S. federal trademark registrations for HELLS ANGELS and fifteen registrations total.

HELLS ANGELS is a famous mark and the Hells Angels Motorcycle Corporation takes enforcement of it very, very, very seriously.  Only Club charters and members may use the HELLS ANGELS mark and HAMC does not license it, or the Death Head logo, to anyone else under any circumstances, ever.  When it comes to these marks, HAMC has a motto: loyalties not royalties.

While members of the Hells Angels admittedly used to engage in “self-help trademark enforcement,” (enforcing their marks on their own directly with the infringers) they now turn to assistance from the courts, which thus far has resulted in lots of settlements.  HAMC has filed federal infringement lawsuits against such heavyweights as Marvel Comics, Disney, Saks, and now Amazon.  As reported by the Los Angeles Times on Tuesday, HAMC’s long time attorney, Fritz Clapp, stated, “We bring these lawsuits from time to time not just to punish but to educate.”  I imagine the defendants in these cases probably also prefer the legal system to the means of enforcement in which the Hells Angels might otherwise choose to engage.  Yesterday, Fritz explained to CBS Radio (as can be heard here if you press the play button) that the main goal of the lawsuit is to get the products off the market.

Since the HELLS ANGELS mark is a collective membership mark, rights in the mark are not limited to use in connection with a specific product or service.  Some collective membership marks, like 1% for the Planet, are used on members’ products or in their marketing, advertising or promotion (see below).  Others, like HELLS ANGELS are worn by the members — in jewelry, on patches and apparel.  There are also two federal registrations for HELLS ANGELS for apparel, strengthening the Hells Angels’ claim for infringement.  HELLS ANGELS is an inherently distinctive and famous mark, so my money is riding on the motorcycle club for both their infringement and dilution claims, though of course, I expect this to settle and soon.

When the commonly known meaning of a term is a brand, chances are that brand is famous.  General rule of thumb: don’t use famous brand without permission, unless you’re hankering to be sued.

 

 

 

 

 

 

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

3 Comments

  • […] I wrote about my former client — the Hells Angels — (yes, really) having sued Amazon.com and […]

  • ed shaw says:

    i truely beleave that amazon.com has no right at all to even have.i beleave they should be finded and all funds made on such items should be sent the hells angles,i have total faith in the hells angles club i beleave all charthers around are not being treated right .i truely beleave theythe club it self has to much harsment by the law.should not all the hells angles do is ride bikes like any 1 else.except most people don’t realy the true history behinde the club so i think the a major appoize is to be made in pubuic the club and all it’s chaters on radio and in the court room

    • Lara says:

      Thanks for reading and commenting, Ed. My guess is that Amazon and the clothing company will settle quickly and that HAMC will donate any monies received in the settlement to one of the numerous charities it supports, as it did in the Marvel Comics case years ago. I know Fritz is working towards a swift resolution, and given his commendable track record, I presume he will acheive it.

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