Brando Enterprises, the entity that owns and administers Marlon Brando’s Right of Publicity and other intellectual property interests, has filed a lawsuit against Harley Davidson as reported by Forbes.com and various other sources. The suit centers on Harley Davidson’s offering of a line of boots reportedly entitled “Brando” boots.
The suit, filed in Los Angeles County Superior Court, notes that Harley Davidson’s product resembles boots worn by Marlon Brando in his film “The Wild One,” released in 1953. It is not clear at this stage whether Harley Davidson used any other aspects of Brando’s identity in conjunction with the product line, or advertising and promotion of the boots.
Over the years, I’ve seen quite a few situations where a company used only a single name in association with a product line, such as a line that has a “Marilyn” style purse, dress, fragrance or other product. All things being equal, the name “Marilyn” conceivably could refer to anyone with that namesake, or no one in particular. But sometimes, upon closer inspection, the product line is being positioned as a “Hollywood” line or something similar, and includes products featuring other movie stars who may be identifiable on a first-name only basis. Similarly, I have seen product lines where the only aspect of identity is a single name, but the product is part of a package offering in which there is not only a “Brando” but also a “Bogart” and a “McQueen” for example. In these scenarios, it would be hard for the company to argue that they were not tying the product specifically to Marilyn Monroe (in the former example) or Marlon Brando, Humphrey Bogart and Steve McQueen (in the latter example). In context, the identity of these particular personalities becomes unequivocally identifiable.
In class, I sometimes demonstrate this point through a hypothetical company that has a product referred to as “Michael.” Common name, and likely no particular association is conjured without more context. But, if that product happens to be specific to basketball, might the product be playing off of the consumer’s familiarity (consciously or subconsciously) with Michael Jordan? What if the product features only Chicago Bulls’ team colors? Or what if the product incorporates Michael Jordan’s jersey number in some fashion? What if the product is sold primarily in Chicago? Switching gears, what if the product is music-related? That would likely eliminate any association to Michael Jordan, but may bring into play another singularly-famous Michael. What if the product is a microphone or a style of clothing that is strongly associated with Michael Jackson? I’m leaving these scenarios purposefully vague, and not taking a position myself, but hopefully these examples give something to consider.
At this point, I have not investigated the Harley Davidson product line, so I do not know if the two preceding paragraphs are applicable to Brando Enterprises’ suit against Harley Davidson. I will note that the lawsuit alleges that Brando Enterprises has licensed use of Brando’s name to entities like Triumph motorcycles and Dolce & Gabbana, which means that an unlicensed Brando boot from a notable motorcycle manufacturer could not only present the issue and damages of an unlicensed product, but could also be undermining or conflicting with existing programs that Brando Enterprises has in place with its licensees.
Here is a link to the Forbes.com article: http://www.forbes.com/feeds/ap/2011/05/17/business-us-harley-davidson-brando-lawsuit_8471562.html