Harley-Davidson Logo Rides Without Words

by Winthrop & Weinstine, P.A.

The well-known, if not famous, Harley-Davidson logo is on the left below, but what is on the right?


Might Harley-Davidson also be in the business of renting storage garage units for motorcycles among other outdoor toys? I doubt it.

It looks like Harley-Davidson is involved in the rental of motorcycles, but that’s all I was able to find mentioning rental for Harley-Davidson marks on the USPTO database.

Might Harley-Davidson have licensed the orange/black non-verbal rendition of the logo to another for the inclusion of their own words and content? I double doubt it.

Harley-Davidson’s licensing program is an amazing engine of its own, and finely tuned. A few years ago a marketing type who was working on the Harley-Davidson creative account told me the most important instruction from above was “Don’t screw it up!” Interesting choice of words, given the Harley slogan from 2008: “So screw it, let’s ride.”

Nevertheless, given that instruction, might the person who created the Inside Out Storage signage be a fan of the Harley-Davidson brand and been inspired by the brand’s logo? I’ve seen this kind of thing happen before with other well-known brands, and fans being inspired by another’s brand is often the explanation when their actions are challenged. So, now I think we’re probably getting somewhere closer to the truth, if I was forced to hazard a guess on this one.

Assuming this is an unauthorized and unlicensed use, the problem for the Inside Out Storage folks would be that being a “fan” of another’s brand doesn’t create an entitlement to use, and I’m seeing no reasonable fair use argument here either, classic or otherwise (i.e., nominative). With respect to inspiration, while being inspired by certain things can lead to the creation of inherently distinctive marks, using another’s distinctive logo as inspiration for your own is a dangerous endeavor not traveled well without an experienced trademark type riding along your side.

This mental exercise left me wondering what non-verbal trademark protection Harley-Davidson may have pursued at the USPTO, and I found this sharp image without any color limitations:

This empty and colorless non-verbal Harley-Davidson logo is federally-registered for lots of goods and services, including ”metal locks, spark plugs, sunglasses and motocycle helmets, motocycle parts, jewelry, traveling bags and saddlery, and leather gloves,” “embroidered patches,” “restaurant and bar services,” and “vehicles, namely, semi-tractors.” And, it filed intent-to-use applications for “drinking water; sports drinks and power drinks, namely, energy drinks” and all kinds of snack foods falling within Int’l Classes 29 and 30, but then permitted the applications to become abandoned for failing to submit evidence of use, after Notices of Allowance had issued.

One of the interesting aspects of the specimens of use supporting these registered rights is that Harley-Davidson appears to use the image as a stand alone logo without words, at least for some of the goods listed above. Marketing types, when brand owners operate in the world of non-verbal logos, isn’t spreading the news by word of mouth more difficult without a word to bring the image to mind, like Nike’s Swoosh, McDonald’s Golden Arches, or Coca-Cola’s Contour Bottle? Doesn’t Harley-Davidson need a word beyond Shield Logo, or perhaps they already have one, and I just haven’t seen it? If you happen to know, please share.

In any event, having this kind of pure non-verbal use certainly makes a trademark type’s work easier at the USPTO to achieve registration, but for a mark like this one, I doubt it would be necessary — in other words, the design is probably distinctive enough to function as a source-identifier separate and apart from the words even if the words are always present on the actual specimens of use. It would certainly be an easier call if the orange and black colors were used, but maybe a closer call if other very different colors were used instead (unless, of course, so-called fluid trademarks are in the Harley-Davidson toolbox too).

Bottom line: As a trademark and brand owner, having this kind of federally-registered non-verbal trademark protection for the carrier of the visual impression of one’s brand goes a long way to quieting any comments about there being no possibility of a likelihood of confusion or likelihood of dilution (when other words and color schemes are used by another), and it also tends to quiet comments about whether the device functions as a trademark separate and apart from the words typically contained in it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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