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Trademarks on wheels


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For as long as I can remember, I have loved bicycles. In 1981, two high school buddies and I biked around Lake Ontario. The next year, two of us cycled across New England. On both these trips I rode a Motobecane, which was the premier French bicycle brand back in late 70's and early 80's.

My obsession with bicycles and a desire to make them stronger and lighter inspired me to get a degree in materials engineering, which I applied to building satellite components as an engineer with a major aerospace company. In the early 90's, before becoming a lawyer, I started a company that made mountain bike components of my design. Sadly, I don't ride as much anymore, preferring now to simply strap on a pair of running shoes. Nevertheless, I still enjoy bicycles and maintain a small stable in my garage.

A little while back, I got the desire to obtain a track bike – or “fixie,” as they are commonly known. They have been all the rage the past five years or so, as some people have eschewed multi-speed bicycles for the inherent simplicity of the fixie.

I hopped online to investigate and find a suitable fixie, and ended up at a website that sold several brands I was very familiar with from back in my high school days – including my old favorite, Motobecane. I also noticed several other brands from my youth: Dawes, a once well-known English manufacturer of touring bicycles; Mercier, another high-end French bicycle manufacturer from the 70's; and Windsor, an early 80's brand that produced high-quality but low-cost bicycles in Mexico. Interestingly, despite knowing that all these brands had either gone bankrupt or stopped importing to the United States many years ago, I found myself still favorably disposed to these new versions.

I did some research. The current trademarks for all these brands are owned by the same Florida company that appears to import bikes from China, and sell them for relatively low prices directly over the Internet. The current brands have absolutely no connection to the old brands. Rather, when the original trademark owners failed and the marks went abandoned, they were re-registered by the current owner, who is now benefiting from the warm feelings that people like me still have towards the old brands. In essence, the new owner is benefiting from the goodwill created by the long failed company, finding it easier to sell a budget bike as a Motobecane instead of under a new name that has no name recognition.

The whole purpose of a trademark is to designate quality and the source of a good or service. You know when you by a Coke that it is going to taste substantially the same as any other Coke you have recently consumed, and that it was produced by the Coca-Cola Company. Trademark law prevents competitors from using the mark of another or using a mark that is confusingly similar to another's mark. For example, Coca-Cola could stop a company from selling cola under the name Koke, as the mark might confuse some consumers into thinking the Koke cola is made by Coca-Cola or that the product possesses the same taste and quality that has been established over the years by Coca-Cola. In essence, the purpose of trademarks is to protect consumers so that they know what they are buying.

However, when a company fails and its marks go abandoned, anyone can pick them up and register them as their own – and then sell products under the old venerable brand. Even though I know the new Motobecane has no relationship to the old company, I still am inclined to trust the brand more than a no name brand by the same manufacturer. Other consumers not in the know may be even more inclined. Accordingly, the new owner may be able to sell a Motobecane branded bike for a little bit more than it could if it was identified by an unknown brand. The consumer is fooled into thinking he or she is buying a bike from a French company, not an importer based in Florida.

Perhaps the best example of this is another two-wheeled cycle brand, Indian Motorcycle. The trademark is currently owned by Polaris Industries, a snowmobile manufacturer. The company in its advertising invokes the Indian tradition of 60-70 years ago, when Harley-Davison and Indian competed for dominance in the world of American-made motorcycles. U.S.-based Indian failed in the early 50’s but another company acquired the trademark rights and sold slightly modified English motorcycles under the Indian brand until 1960, when the mark was sold to another company that soon went out of business.

In 1962, Floyd Clymer Imports started using the Indian name. Clymer had no relationship with the previous owners. The lineage of the mark back to 1898 was broken. Over the years the mark has traded hands many times until coming to rest with its current owner. Polaris Indian Motorcycles owe their lineage to a 50cc Italian minibike sold by Clymer, not the post-WWII chiefs of legend and lore that they would have us believe.

So, when you see an old venerable brands suddenly reappear: caveat emptor.

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Kurt Leyendecker

Kurt Leyendecker is a founding member of the intellectual property law boutique, Leyendecker & Lemire. Leyendecker & Lemire specialize in patents, trademarks and related complex civil litigation. Kurt Leyendecker can be reached directly at 303.768.0123 or kurt@coloradoiplaw.com. Visit www.coloradoiplaw.comfor further information, including Leyendecker & Lemire’s weekly blog, “Control, Protect & Leverage.” 

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