Professional Documents
Culture Documents
Fax:(6l9)232-0036
6
7 ' Attorney far Amici Curiae
Ah~ERICAN CIV~.LIBER`T`IES i.)NIO~1;
8 '
AMERICAN CIVIL LIBERTIES[JIVION
9 OF SAN DIEGO &IMPERIAL COUNTIES
10
it UNITED STATES DISTRICT COURT
CENTRAL U~ST~CT OF CAL~F~RNIA
12 '
13 '
iJIVITED STATES ~F AMERICA Na CR 13-0106-DQC
14
Plaintiff, MEMORANDUM OF POINTS ANA
15 AUTHORITIES OF AMICI CURIAE
V. AMERICAN CIVIL LIBERTIES
16 UNION AND AMERICAN CIVIL
Mo~v~a~ ~~~'ION, LIBERTIES UNION QF SAN DIEGO &
17 an unincorpar,~ted association, I~Eiu~.Co[nv'r~s
1$ Defendant. .Date: February 28, 2419
Time: 8:00 a.m.
19 Judge: Hon,David O. Carter
20
2l
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Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 2 of 23 Page ID #:3322
1 TALE OF CONTENTS
2
3
4 INTRODUCTION .............................................................. ...... .......... .... ......r..... l
5
ARGUMEN~..............................................................~.,..,,..~..,...............,........,,.,....,..3
6
20
A. The display ofitems baring the Marks to express identity or
2l . .
association is protected speech..............................................................4
22
B. The government may not exploi# forfeiture law to impose a content-
23 based prior restraint on protected speech that Congress could not
constitutionally enact...........................................................................11
24
ii
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 3 of 23 Page ID #:3323
1 TABLE OF AUTHORITIES
2
3 CASES
iii
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 4 of 23 Page ID #:3324
8 Collin v, Smith,
9
578 F.2d 1197 {7th Cir. 197$)..................................................................~.,.~.".. ~ 4
18
967 F.2d 1280 {9th Cir. 1992j..............................................................................7
26 '~
.Fort Wayne Books, Inc. v. Indiana,
27
48'~ U.S. 4b (~98~~ .............................................................................................11
~8
iv
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 5 of 23 Page ID #:3325
1 Healy v. James',
2 4~8 U.S. 169(1972)...........................................................................................12
3 Huber faking Co. v, St`roehmann Bros. Ca.,
4 252 F.2d 945 ~2ci Cir. 195$).................................................................................5
5
Hurley v. Irish-Am. Gay, Lesbian & Biseacual Grp. of.~8vs.,
b
515 U.S. 557(1995).................................................a....~...~.........,..,..........,........10
7
8 In rQ Lorillard Tobacco Co.,
1Q In re Murphy-Brown, LLC,
11 9~7 F.3d '188(4th Cir. 2018).,..~........................~,.,...........,..................,..............11
12 Int'1 Order o,fJo~i's Daughters ~. Lndehurg & Co.,
13 633 F.2d 912(9th Cr. 19$0)................................................................................4
I4
James a Meow Medta, Irtc.,
]5
30U F.3d 683(6th Cr. 2042)..............................................................................13
16
17 Johansen ~x rel. NLRB v. S'an Diego County Dtsr. Cvuur~cil of
v
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 6 of 23 Page ID #:3326
vi
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 7 of 23 Page ID #:3327
S
Specht v. Google Inc.,
17 Unite~Staies v. ~tngiuly,
vii
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10 R''hite v. Lee,
11 227 F.3d 1214(9th Cir. 2000j............................................................................13
12 '
Whittaker Cor,~. v. Execuair Corp.,
13 953 F.2d 510 {9th Cir. 1992)..............................................................................15
14 STATUTES
15 15 U.S.C. § 1054.................................................................................~.,...,...........,..5
16
15 U`.5.C. § 11 I6(d){i)(A).....................................................................................15
17
1$
15 U.S.C. § 1118....................................................................................................15
19 15 U.S.C. § 1127..................................................................................................4, 5
2~ 1 S U.5.C. § 1963(aj........... .. .... ..........................................................................~
21
18 U.S.C. ~ 163{~}............................................................~............~..,,..............,....,9
z~ RULES
23
Fed. R. brim. P. 32.2(b)~l)~A)......_.~.~............................................................. ....5
24
25
2fi
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viii
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1NTRODUCTI~I'~i
2 fiver ten years ago,the government launched a campaign.to destroy the
identity of an association by depriving its members and supporters ofthe free
4 speech right to identify themselves with distinctive insignia. Targeting the Mongols
5 Motorcycle Club ("Club")by prosecuting certain members,the government
6 obtained an ex parte restraining order and declared that any officer who saw any
7 Club member "wearing his patch" could "literally take the jacket right off his
8 back." ATF Undercover Investigation Leads to Federal Racketeering Indictment,
9 https;//www,iusti~ce.gav/archive/u~ac~/cac/Pressroornlpr204$/142.htm1(Oct. 21,
to 2UQ8). Although this Court halted the government's original attack, the government
11 has resumed its war on free expression by again seeking forfeiture ofthe Tub's
12 collective membership marks(".Marks") after indicting the Club.
13 The government is now doubling down on its novel theory that farfeitu~-e
~4 justifies censorship of persons using the Marks to identify or express themselves.
15 it admitted the I+~arks aye the "unity symbol" at the "core" ofthe Club's "identity"
Ib yet effectively acknowledged it wi11 attempt to "seize additional items bearing the
17 name and logo from individual members" oftie Club. Federal Jury fJrders
18 ~tYlong~ls Motorcycle Gang to Forfeit Logos, https:l/wwwiustic+~,govlusao-
19 c~dcafpr/federal-iury-vrders~mongols-mvtorc~le-gang-forfeit-loos (Jan.. 11, 2019}.
20 It goes without saying tha# Congress could not prohibit a private association
2~ or its members from using parti+~ular insignia to express membership in or support
22 for that association. This Court previously held th$ government cannot accomplish
23 that result through abuse ofits forfeiture power. For similar reasons, the
24 government may not now prohibit the Club and its members or supporters from
25 identifying themselves, A properly convicted person or organisation may be
26 subjected to appropriate punishment, but that punishment may not include the form
27 ofcivil death sought by the government.
28
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Even assuming the Ctub's RICA convictions are valid, the government's
2 novel forfeiture theory remains "creative tv a fault." Rivera a Carter, No. 2:09-cv-
3 0243S-DOC-JC, Order Granting Summary Judgment at 13(ECF No.9Q){C.D. dal
4 Jan, 4,2~11)("Rivera ~~mm. J~dg. Order"~. Unlike other intellectual property, a
5 trademark is not a mc~nopol~ ri~,ht. The purpose ofa trademark is to prevent
6 consumer confusion about the origin o~ goods yr servaces bearing the mark. As a
7 result, a trademark ct~nfers only limited property rights to prohibit certain purely
8 cammercial uses ofthe mark. Depending on the evidence at trial, the limited rights
9 conferred by the 1Nlarks may not have a sufFicient nexus to the RICO offense found
10 by the jury to justafy forfeiture.
11 In any event, the law prohibits any transfer, voluntary ox involuntary, ofa
12 trademark in gross, independent ofthe underlying business or organization that it
l3 symbolizes. Thy Marks symbolize the Club's identity. The government cannot
d4 assura~e the identity ofthe Club itself. Instead, it is improperly attempting to strip
15 the Marks ,as if they were flowing rights independent ~fthe organisation they
l6 symbolize, in violation ofsettled trademark law.
17 At best, even ifthe Marks are technically forfeitable, they would expire and
18 return to the public domain, because they are not exercisable by or transferable for
]9 value to the United States. In that case, perhaps the Club would lose the limited
20 right to sue third parties for purely corr~mercial infringement Qr dilution, but the
21 government would enjoy no right to control alI use or display ofiterris bearing the
22 Marks. given if the government could succeed to the Club's trademark rig~.ts, it
23 could not prevent use o~the Marks to express support for the Club.
24 Any attempt to do so would also violate the First,Amendment. As collective
25 membership m ks,the Marks exist to express the Club's identity and the fact of
26 membership and support for the Club. Such expression ofidentity and association
27 rests at the core ofthe First Arne~dinent. While convi~ti~n may lead to ~et•t~in
2$
2
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3
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1 Co. v. Str~oehmanrr Bros. Co., 2S2 F.2d 945,952(2d Cir. i 958). °The holder of a
2 collective mark enjoys no greater enforcement rights than any other trademark
3 holder. 15 U.S.C. §§ 1054, 1127; Sebastian Intl, Inc. v. Longs Drug Store Corp.,
4 53 F.3d 1073, 1075(9th Cr. 1995}; PCTA v. Bunkers Life cg Casualty. Co.,514 F.2d
5 665,6b8(5th Cir. 1975); Carefirst of11~aryland, Inc. v. First Care, P.C., 35~ F,
6 Supp. 2d 714,724 n.9(E.D. Va. 2U04), aff'd, 434 F.3d 263(4th Cir. 2046).
~ B. Depending on the evidence at trial, the limited property rights
conferred-by the Marks may not have a sufficient nexus to the
8 alleged offe~s~ t+a justify forf~i#ure.
9 Given the limited prepexty rights provided by trademark law, it is not clear
14 "the government has established tl~e requisite nexus betv~reen the property and the
11 offense." Fed. fit. Crim. P. 3~.2{b)~1 j(~~. It is not enough to say intangible property
12 may in theory be forfeitable under ~I~O. To justify forfeiture in this case, the
13 government must show the property rights conferred by the Marks were acquired or
14 maintained as a result ofthe RECD offense; derived firarn that offense; formed ~
1S interest in, claim of, or security against the enterprise; or afforded a source of
16 influence over the enterprise. 18 U.S.C. § 1963(x). I~iere, the offense found by the
17 jury has no obvious nexus to the existence er exercise oflimited trademark rights
8 against commercial infringement or dilution.
9 Trademarks are acquired by frst use. Sengoku YYorks Ltd,. v. RMC Ir~t'1,
20 Ltd., 96 F.3d 1217, 1219 9th Cir. I996). The Marks were not acquired as a result
21 ~fthe offense ifthe "earliest predicate act" in ~OOb commenced "after the time of ~,
22 acquisition" ofthe Marks by first use in 1969. United States v. Angiulo, 8~7 F.2d j
23 1169, 1213 (1st Cir. 1990). For the same reason, the Marks did not derive from the
24 RICO offense. See United ~'tates v. De~'ries, 129 F.3d 1293, 1313(D.C. Cir. 1997};
25 United States v. Cianci, 2l8 F. Su p. 2d 232, 237(D.RI. 2002).
26 Property is not "maintained" in violation ofRICA if it would not have been
27 "maintained but for the defendant's racketeering activities.." A»giulo,897 F.2d at
28 1213. It is not clear how the "racketeering activities" fond by the jury were "a
5
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 14 of 23 Page ID #:3334
cause in fact" ofthe Club's ``maintenance" ofits limited trademark rights. Id.
~~ There is no obvious nexus between commercial trademark rights and the predicate
3 acts found by the jury. It would be "anomalous" for the government to ar,~ue
4 "tradernaxk protection" is related to actions taken "gin violation ofthat govennm~nt's
5 own laws" such as alleged drug crimes, murder,and attempted murder. ~reAgri,
6 Inc. v. USANA ~lealth Scis., Inc., 474 F.3d 626,63n (9th Cir. 2007)(holding that
7 "only lawful use in catnmerc~ can give rise to trademark priority").
8 l~ior is it clear how the 1V~arks are an interes# in, security of, or claim against
9 the enterprise. The Marks belong fio the Club,F.R. Lepage Bakery,Inc. v. Roush
1Q Bakery Products Co., Inc., 85 I F,2d 351,353, modified on unrelated issue, 863
11 F.2d 43 Fed. Cir. 1988), which must b~ distinct fmm the alleged "enterprise,"
1~ Cedric Kushner Promotions, ltd. v. King, S33 U.~. 1 S8, 161(200]).
l3 It is not clear hvw ~e ~Clu~i exercised its commercial trademark rights as a
i~ source ofinfluence over the enterprise. ~'he evidence may show unlawful conduct
15 such as threats or in#imidation. But that does not necessarily rmean th+e limited
iC~ property rights conferred by the Marks were "used to further tie affairs ofthe
17 enterprise."i A~agiulo, 897 F.2d at X214. By analogy, an individual has a "right of
18 publicity" against unauthorized use ofone's likeness, which is "a form of
19 intellectual property," Comed,~ 111 Proms., Inc. v. Gary Saderup, Inc., 25 CaL 4th
20 387,399(2001), but the extralegal exploitation of a reputation for violence or other
21 unlawful conduct does not necessarily mean the defendant's commercial right of
22 publicity ~s forfeitable absent some nexus ofthat parkicular right to the offense.
23
24
25
~~~ 'The Marks represent in~angibl~ rights independent ofany physical items bearing
27
the Marks that the Club owned or said. Perhaps such items or their proceeds may
have furthered ~h~ enterprise, but that would result at best in forfeiture ofthose
28 items or proceeds, not the Maarks themselves,
C~
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7
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 16 of 23 Page ID #:3336
929{2d C r. 1984). The same is true for a collective membership mark: Any use or
Z control ofthe Marks by the government would necessarily signify something
3 different from symbolizing the identity ofthe Club and membership therein.
4 It vriould create confusion in the public mind and violate settled trademark law.
5 These principles apply equally to involuntary #ransfer of a mark.Id. at 93~.
b In Marshuk,the court reversed an "order directing a levy of execution and. sale" of
a trademark, agreeing that"a trade name or mark per ~e is not a type of praperiy
8 which can be attached or sold at execution auction." Id. at 929,93]. A judgcn.ent
9 creditor attempted to force the sale ofa trade name associated with "musical groups
1~ for entertainrnen~" but did not have any right to take over managerr~ent ar operation
ri ofthose gx-oups.Id, at 928. The court rejected that ~~tempt because "[t]here are no
12 rights in a trademark apart from the business with which the mark has been
13 associated; they are inseparable." Id. at 929. Accordingly, whether by "forced sale"
1~4 or voluntary assignment, a "safe ofa trade name or mark divorced ~rvm its
15 goodwill" is an invalid "assignment in gross." Id.
l6 Like execution and sale to satisfy a judgment, a criminal forfeiture is a forced
1~ transfer. Any transfer ofa mark in gross, forced ar o#herwise, is invalid. The Marks
l8 symbolize the identity Qfand mernbers~iip in tie Club. The government cannot
l9 assume the identity ofthe Cluh, which exists only as an association ofits members.
2t~ As this Court previously found,"[t]he marks are a collective use mark,the rights to
21 which could not have been assigned in gross." Rivera Summ. Judg. Order at 13.
22 Therefore, the government cannot exploit forfeiture powers to force transfer ire
23 gross ofthe Club's collective membership marks.
24 Even ifthe 1Vlarks are somehow forfeitable, the RICt} forfeiture statute does
25 not permit the government to retain forfeited assets or exercise tradernarl~ rights in
2G gross."Following the seizure of property ordered forfeited under this section, the
27 Attorrrney General shall direct the disposition ofthe property by sale or any other
2$ commercially feasible means .... Any property right or interest not exercisable by,
8
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 17 of 23 Page ID #:3337
or transferable for value to, the United Mates shall expire ..." 18 U.S.C. § 1963(t~"j.
2 Because a trademark is not transferable in gross, the government could not dispose
3 of the Marks by "sale or any other commercially feasible mans." Id. For the same
►~ reason, the Marks are "not exercisable by, or t~ans~erable for value to, the United
States." Id. At best, therefore, they would expire upon forfeiture and return to the
6 public domain, as they would incase of abandonment. Specht u. Google Inc., 747
7 F.3d 929, 935 (7th Cir. 2014).1n that case, the Club might nat retain the previous
8 right to sue fox infringement or dilution, but neither could the government prohibit
9 the Club or its members or supporters from using the Marks to express themselves.
1Q Eves if the government could somehow succeed to and retain the Tub's
11 limited trademark rights, it could not summarily confiscate items bearing t ae Marks
12 from Club members or supporter. Once individuals acquired those items, the "first
13 sale" doctrine provides that use, display, or even resale vfthe items does nQt violate
14 trademark rights. Sebastian Intl, 53 F.3d at 1075-76. In addition, the gvv~rnment
l5 would enjoy Only limited trademark rights against purely commercial infringement
16 and dilution, which cannot preclude all expressive use of the Marks to demonstrate
17 support for the Club or opposition t~ abuse of power. Bosley, 403 F.3d .at 67fi, b79;
18 Mattel, 29fi F.3d at 906-07.
f~~ II. SHE FIRST AMENDMEN"I' PR4HI~ITS ANY' AT'TE11~PT TO
SI~.ENCE THE CLUB OR STS MEIV~BERS AND SUPPORTERS
20 FROM USING THE MARKS TO E7~CPRESS THEMSELVES.
2l A. The dis~lay.of i#ems bearing the marks to express iden#ity or
as~oci~ ion is protected speech.
22
23 The government's forfeiture str~.tegy conflicts with the First Amendment
24 because the government may not prevent the Club or its members or supporters
25 from using the Marks to express themselves,2 To wear or display items bearing the
26 Marks is the essence of protected speech for at least three reasons.
27
2 The First Amendment protects speech of both organizations and individuals.
2~ ~'itizens +United v. Fed. Election C~mm'n, 558 U.S. 310, 343 (2010); FirstlVut.
D
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 18 of 23 Page ID #:3338
11
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 20 of 23 Page ID #:3340
to certain restrictions if convicted, the- First Amendment does not permit restrictions
2 on the speech of others "merely because an individual belongs]to a group, some
3 members df which committed acts of violence." NAACP v. Claiborne Hardware
4 Co., 458 U.S. 886,920{1982), cf. Healy v. Jams,408 U.S. 169, 186(1972}(First
5 Amendment rights cannot be infringed based on "guilt by association"},
6 The government may not bootstrap a conviction ofthe Club into censorship
7 of uncharged members and supporters. The Club is a "separate legal entity" from
8 members and supporters. Rivera, 2009 WL 87534$6 at *5. An individual r~a~+ not
9 be punished fox the crime of other person, natural or a~tific~al. Any punishment cif
14 the Club cannotjustify restricting the speech of members or supporters..
11 Likewise, the Club cannot be prohibited from exercising the right xo ideantify
t2 itself with the Marks. V~hi~e perhaps certain restrictions on conduct might be
13 appropriate conditions ofsentence, the Club cannot be deprived ofthe fundamental
l4 right to identify itself, any more than conviction can strip individuals oftheir
15 names.3 It is no answer to suggest the Club may express i#selfthrough ether
15 insignia."The First Amendment mandates that we presurr~e that speakers, got the
17 gove3-nment, know best bot~i what they want to say and how to say it."Riley v,
l$ Nat'l Federation ofthe~8lind vfNorth Carolina, Inc., 4$~ U.S. 781, 790-91 (1988).
19 Nor should the Cou~E credit any protestation that the govem~ment would not misuse
20 forfeiture powers."~7`Jhe First Amendment prQt+ects against the Government; it
21 does not leave us at the mercy ~frra~lesse o~l~ge" or any promise to use power
22 "responsibly." United States v. Stevens, 559 U,S. 460,480(2010).
23
24
2~ 3 The wholesale confiscation of expressive items bearing the Marks would g~o far
beyond narrowly tailored rest~-~ctiQns on non-~~cpressive "social intercourse" with
2fi certain gang members in a particular neighborhood or "intimidating" residents of
za that neighborhood. People ex rel. Gallo v. Acuna, 14 CaI. 4th 1090, 1121-22
(1997). Nothing in Acuna supports an effective ban on mere expression ofidentity
28 and support for the Club at any time or place.
12
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 21 of 23 Page ID #:3341
13
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 22 of 23 Page ID #:3342
ac~missi6le that toms an the intrinsic justice cifthe p~rti~ular policy in issue." Collin
~a v. Smith,578 F.zd 1197, 12nS (7th Cir. 1978).
3 The government can fnd n~ help in AlexQnder v. United States, S(}9 U.S. 544
4 {I993). In that case, a defendant in the "adult entertainment" business was
5 convicted ofobsceni~ violations and "RICO offenses that were predicated on the
b obscenity convictions." Id. at 547. The jury found defendant "had an interest in 10
7 pieces ofcommercial real estate and 31 current or for~r►er businesses, all of which
S had been used to conduct his racketeering enterprise," and defendant was ordered
9 "to forfeit his wholesale and retail businesses including all the assets ofthose
to businesses} and almost $9 million in moneys acquired t~►rough racketeering
li activity." Id. at 548. The Supreme Court rejected defendant's argument that the
12 forfeiture was a prior restraint, because "the RICO forfeiture order in this case [did]
13 not forbidpetitioner from engaging in any expressive activities in the future, nor
14 tdtd] it require him to obtain prior approval far any expressive activities." Id. at
15 55 51. Instead, it dep~iv~ed him of specific tangible "assets that were found to be
1G related to his previous racketeering violations," such as real estate, businesses, and
t7 money. ld at 551. The order "impose[d] no legal impediment ta—no prior restraint
l$ on—petitioner's ability to engage in ar~y ~expressrve activity he chooses." Id.
19 Here, by contrast, the government is seeking forfeiture for the purpose of
zo preventing the Club aid its members and supporters from engaging in protected
21 speech by identifying themselves through display oaf items bearing the Marks. As it
22 has previously done, the government seeks to confiscate expressive items bearing
23 the Marks. That is a classic prior restraint which remains no less unconstitutional
24 no~v thaw when this Court previously enjoined it.
25 III. DUE PROCESS WOULD PROHIBYT ANY SUMMARY
C~NFISCAT~ON OF ITEIV~S BEARING THE MARKS FROM CLUB
26 MEMBERS U~t 5UPPU~tTERS.
27 Aside from the First Amendment, and assuming the government could
2$ exercise the Club's trademark rights, due process does not allow the government to
14
Case 2:13-cr-00106-DOC Document 388 Filed 02/28/19 Page 23 of 23 Page ID #:3343
confiscate items bearing the Marks without native and hearing to prove purely
2 commercial infringement or d~~ut on. Consistent with due process, a court may
K~ allow confiscation ofsuch items only if a trademark violation "shall have been
4 established" in an adversary proceeding. 15 U.S.G. § 111 S. A "final judgment
5 against the in personam defendants is a necessary precondition to the ultimate
b forfeiture and destruction ofthe seized merchandise." 11/at'1 Assoc.for Stock Car
7 Auto Racing, Inc. v. Does,584 F. Supp. 2d 824,829(W.fl.1~+1.C. 2008)
8 ("NASCAR"). Confiscation and destruction are allowed only for those goods that
]
C actually infringe a trademark, Whittaker Corp, v. Exeeuair Corp.,953 ~.2d 5l D,
10 5l9(9th Cir. 1992). Moreover, confiscation is unnecessary if an injunction against
infringennent is sufficient. Kelly Blue Boar v. far-Smarts, Ins., 802 F. Supp. 278,
12 293{C.D. Cal. ~ 942). Ex parte canfiscati~n is allowed only in limited
13 circumstances involving alleged counterfeiting, which is not at issue hers. 15
14 U.S,C. § 1116(d)(1)(A);1WASCAR, 584 F, Supp. 2d at $28 {citing In re ~oridlard
15 Tobacco Co., 374 F.3d 982,987(9th Cir. 2 04). As a result, summary confiscation
16 ofitems bearing the Marks would violate due process without a full adversary
17 hearing and findings of purely commercial. infringement or dilution.
18 CONCLUSION
19 For the fflregoing reasons,the Court should consider whether the Marks are
20 forfeitable, deny the x forfeiture in gross, and prevent the gove~ament from.
21 viola#ing the First Amendment and due process by summarily confscati~ag items
22 bearing the Masks.
23 Dated: August 8, 2019 Respectfull fitted,
24 By:
25 David Loy
Attorney for Amici Curiae
26
27
28
1S