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.