image: Nasty Gal

image: Nasty Gal

Our friends over at Nasty Gal are selling an interesting top. The design, a satin cami, is pretty straightforward; the name, Nasty Gal Hell’s Angel Satin Cami, however, may not be so simple.  As you probably know, the term Hells Angels largely refers to a worldwide motorcycle club, which has garnered increased attention over the past few years for its classification as a “known criminal organization”. Particularly interesting for us is the array of trademarks that the Hells Angels hold for their name and various logos, and their litigious nature in connection with those marks, especially when it comes to fashion.  Here’s a bit of history …

According to the federal trademark registrations that extend to “Hells Angels”, the motorcycle club has been using the name in connection with garments, particularly, t-shirts, since 1983.  This means that the motorcycle club has the right to prevent others from using the “Hells Angels” trademark on clothing and to sue for trademark infringement if unauthorized use of its trademark occurs.   As the Los Angeles Times wrote in 2010, “In decades past, the Hells Angels Motorcycle Club settled disputes the old-fashioned way, with a swift kick in the groin or a punch in the face to the offending party.”  That is not necessarily the case anymore (at least in terms of trademarks), as the club has been filing lawsuits to protect its intellectual property rights on a somewhat regular basis.

The most noteworthy case in the recent past is the one the Hells Angels filed against Paris-based design house, Alexander McQueen for its unauthorized use of the Hells Angels’ death-head trade dress design. According to the suit, which was filed in October 2010 in the U.S. District Court in Los Angeles, Alexander McQueen, Saks Fifth Avenue and online retailer Zappos.com Inc. were selling handbags, jewelry and clothing using the club’s death-head design.  The Hells Angels’ counsel, Fritz Clapp, said of the allegedly infringing goods: “I went to Alexander McQueen’s site and I found that not only was the word ‘Hells’ used on those things, but ‘Hells Angels,’ the whole phrase was on a pashmina scarf and a Jacquard dress.”  As such, the club not only took issue with the use of its death-head logo but also with the use of its name.  The McQueen lawsuit, which ultimately settled out of court, is the latest in a string of trademark infringement suits the club has filed since 1992, when they sued Marvel Entertainment Group over a Hells Angels comic book.  The club has also filed similar lawsuits against Wildfox Couture (which was selling a t-shirt with the text “My Boyfriends a Hells Angel”), Young & Reckless, Eight 732 Apparel, and ECKO UNLTD, among others.

According to Clapp, “Advertisers and businesses and lawyers are reminded that the Hells Angels name and logo are protected marks, commercially, as well as on the street.” So, what does this mean for Nasty Gal?

Well, it means the fast fashion retailer could be liable for trademark infringement.  Because the Los Angeles-based fast fashion retailer is using the Hells Angels’ trademark in connection with the sale of goods that are not affiliated, connected or associated with the Hells Angels and without authorization to do so, the motorcycle club appears to have grounds to cry, “Trademark Infringement!”

If the Hells Angels were to file suit (and it wouldn’t be the first time; they sued Nasty Gal in 2011 for trademark infringement), the key issue before the court would be whether consumers are likely to be confused as to the source of the Nasty Gal top — in other words, will people think the cami is the result of an affiliation, connection or association with the Hells Angels?  While this seems like it could be a stretch, we have to remember that we are approaching this inquiry from the mindset of the ordinary consumer.  It is worth noting that a quick look at Nasty Gal’s site and social media accounts results in a number of motorcycle-related imagery, which may bolster the Hells Angels argument.  Moreover, the Hells Angels could likely argue that due to the offering of vintage garments for sale on Nasty Gal’s site, such as vintage concert t-shirts, etc., consumers very well may be confused into thinking that the cami is in someway affiliated with the motorcycle club.

Regardless of whether the Hells Angels files suit, it is important to note that trademark rights extend to the marketing and labeling of products, and not just to the graphics and text that appears on garments.  With this in mind, if you’re going to use a style name, it is worthwhile to do a quick trademark search before offering the product for sale in order to avoid potential legal ramifications later.