Outlaw Motorcycle Gangs And Trademark Lawyers Cross Paths

It is not often that outlaw motorcycle gangs and trademarks lawyers cross paths, but recent events show how they do.

The Province of Quebec passed legislation in September 2026 outlawing the wearing of certain indicia of outlaw motorcycle gangs, sometimes referred to as “colours” or “patches”.  Quebec's "anti-patch" law (also known as Bill 13) prohibits the public display of logos, vests, patches, and symbols associated with designated criminal organizations, including outlaw motorcycle gangs.  The prohibition includes such things as club names, acronyms, logos, and associated merchandise showing support for such gangs displayed on clothing or other objects.

The legislation has already been enforced.  News media report that a few days after it became law, police in suburban Montreal pulled over two members of the Hells Angels motorcycle club riding their motorcycles wearing their patches and ordered them to cover them before continuing.

Where do trademark lawyers come in?

Bill 13 raises interesting legal questions, both from constitutional and trademark law perspectives.

Governments sometimes ban the use of symbols, whether in the context of suppressing crime or preventing hate.  By way of example, the distinctive trademark of the rock band KISS, which is a registered trademark in Canada and elsewhere is banned in some countries because of the appearance of the stylized last two letters of the trademark as evocative of wartime Nazi symbols.  Legislation banning the display of a symbol brings with it immediate constitutional questions in the context of freedom of speech, freedom of expression and freedom of association.

The Quebec law also raises a different constitutional question in the Canadian context.  The legislation in question is provincial law.  The Canadian constitution gives dual jurisdiction over trademarks to the provinces and the federal government.  However, the Trademarks Act, which governs the registration of trademarks in Canada is federal legislation.

Pursuant to the Trademarks Act, the registration of a trademark in Canada gives its owner the right to the exclusive use of the trademark throughout Canada.  While it is questionable whether the right to the exclusive use of a trademark creates an affirmative right to use a trademark, the question arises whether a province can restrict a right granted by a federal statute due to a constitutional doctrine known as paramountcy, i.e. where a provincial and federal statute conflict, the federal statute is paramount.

The trademark issue is that at least some names of well-known motorcycle gangs are registered trademarks in Canada. These include such trademarks as HELLS ANGELS, SATAN’S CHOICE and ROCK MACHINE among others.  A provincial ban on the use of a federally registered trademark could conceivably make the registration susceptible to summary cancellation non-use proceedings under Section 45 of Canada’s Trademarks Act if for example the use of that trademark was historically restricted to that province.

Canada’s Trademarks Act prohibits the registration and indeed even the adoption of any trademark that is “any scandalous, obscene or immoral word or device”.  However, as far as this author is aware, to date the Canadian Intellectual Property Office has not refused the registration of trademarks for outlaw motorcycle gangs on such basis, typically reserving such objections for trademarks that contain obvious obscenities.  Indeed, a decision by the Trademarks Office to refuse to register a trademark for a motorcycle club based on that section of the Act would likely also invoke a constitutional challenge on any appeal to the Federal Court.

Trademark lawyers are left in a bit of a moral quandary on this issue, as the sale of counterfeit merchandise has been for many years linked to organized crime (beyond motorcycle gangs).  Legislation by governments to try to extend civil forfeiture to proceeds-of-crime legislation in cases of counterfeiting has also run into constitutional obstacles.  However, as regards Quebec’s recent anti-patch legislation, to the extent that it affects rights in registered trademarks, trademark lawyers may have to take the side of those who ride on two wheels even if sometimes they ride outside the lines.

Summary By: Gary Daniel