Stacey Dogan, Mark Lemley, Jessica Litman, Mark McKenna, Jennifer Rothman, Jessica Silbey, and I filed an amicus in the Mongols trademark forfeiture case. We argue that, while trademark forfeiture is generally possible, any successful transfer would have to include goodwill. Even if the forfeited marks weren't abandoned by nonuse or by transfer in gross, the current Mongols would retain substantial freedom to continue to identify themselves as Mongols.Speaking only for myself, packing this all into 15 pages was a challenge, and sparked some questions about collective membership marks generally. I think the strongest argument against the forfeiture is that it is inherently impossible to include the goodwill of a collective membership mark in a forced transfer, because the goodwill is tied to the membership itself. I think a rational system could rule one way or another on this–in other areas, courts have been very forgiving about what counts as a transfer…
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