A Sound and the Fury Hog wild: Harley-Davidson wants to trademark the roar of its engine. Other motorcycle makers don't want to hear it.


About the noise that its motorcycle engines make, Harley-Davidson has always been somewhat self-reverential. A bit loopy, too, some might say.

The sound is "honest," Harley has advertised. It is "reassuring." It is "as straightforward as it gets."

This is engine noise, mind you, not a Boy Scout.

Elsewhere, the company has boasted about the various parts of the body -- aside from the ears -- that are able to experience the sound. You feel it in your chest, Harley says, and in your stomach. The sound is both soul-satisfying and heart-pounding.

Sex should be as bracing as this engine.

Harley has also likened the sound made by its V-twin engines to music, "sweeter than you'll hear from any stereo." One of its more inspired ads claimed that Harley's engines produced "the most famous song (song?) since the national anthem."

Now Harley's critics are saying the company's homage to its own engine noise has reached beyond the outer edge of self-promotion and into the arena of sheer lunacy. Harley is trying to get a trademark on that sound.

"Personally, I think what they're doing is absurd," says Bob Wolf, who owns a motorcycle repair shop in Arbutus. "How can you [trademark] an exhaust note?"

How? By filing the appropriate papers with the federal government and fending off the nine or so competitors trying to stop you.

Those competitors see Harley's trademark application as something more than absurd. They see it as out-and-out dangerous. "If Harley is not contested, if they do acquire the trademark, they back into almost a patent because none of us will be able to build a motorcycle in this category anymore," says Ray Blank, a vice president for marketing in the motorcycle division of American Honda Motor Co.

Although they are often confused, a patent and a trademark are quite distinct. A patent is a government granted monopoly on an invention. A trademark is an assurance to the consumer about the origin of a particular product or service. So, for example, when you see "Coca-Cola" on the side of a can of soda, you know that the soft drink inside comes from Coke and will taste like you expect a Coke to taste.

Anything capable of identifying the source of goods and services can be a trademark. It can be a design, a word, a number or, yes, even a sound. According to the U.S. Patent and Trademark office, 23 sounds have been trademarked. The most famous are the NBC chimes and the roar made by the MGM lion. Others include the irritating jingle of Upper Marlboro-based Mattress Discounters ("Have a good night's sleep on us "), the playing of "Sweet Georgia Brown" when the Harlem Globetrotters take the basketball floor and the tones familiar to MCI and AT&T; long distance telephone users.

Peculiarly, Orkin, the exterminator, has trademarked the sound of these words: "Otto the Otto the Orkin Man," and a Texas restaurant chain has registered the sound of "Clop, Clop, Clop -- Moo."

"We used to say there should be a law against ugly trademarks," said Lynne Beresford, a staff attorney with the trademark office. "Unfortunately, it was just wishful thinking."

If some of these sound trademarks seem silly, it should be noted that one smell is also trademarked -- a sewing thread with the fragrance of pulmeria blossoms, whatever they are. And more smells might be on their way to the trademark office. Ms. Beresford has received word from her Canadian counterparts of a trademark on a rose-scented car tire, an idea with obvious merchandising appeal.

Whether it is a good idea or not, the key requirement of a trademark is that it be distinctive, that it not be capable of being mistaken for another trademark. Distinctiveness will be key to Harley's argument in support of its trademark application.

The 'thumpa' test

"Our position is that the sound is really a trademark to Harley-Davidson," said Steve Piehl, a spokesman for Milwaukee-based Harley. "An average motorcyclist, if he heard that sound, could identify it as a Harley."

An informal survey of motorcycle riders indicates that he may be right. Harley riders, and riders of other motorcycles too, seem to agree they could pick a Harley out of the pack with their eyes closed. To many Harley riders, that sound, a loping, unsyncopated "thumpa thumpa thumpa," is part of the allure of the Harley, which is the only remaining American-made motorcycle. So taken are they with that sound, that many a new Harley buyer will immediately throw out the mufflers and install pipes in their place to make the noise even louder.

Outside the Harley-Davidson Museum in York, Pa., John Osborn, a bulky owner of a Harley Fat Boy, fairly burst with pride recently when talking about the noise his motorcycle makes.

"When you come up to a light with other bikes, they're all looking at you; you're not looking at them," said Mr. Osborn, 31, who had ridden three hours from his home in New Jersey to visit the museum. "It's because of that sound."

Other Harley owners feel similarly. "It's exciting; it's thrilling," said Peggy Kraft, a 47-year-old software specialist and a Harley Super Glide owner who lives in Columbia with her husband, Phil, also a Harley owner. "It gives you a sense of freedom and a sense of power."

Owners of other types of bikes agree the Harley sound is unique, although they are not all uniformly admiring. "It has its own sound, but I don't think it's desirable," said Sharon Gibson, a project scheduler for Johns Hopkins Hospital. "With a Harley, it always sounds like it's going to stall out on you."

Actually, many say Harley's distinctive sound is the result of an engine -- a V-twin with a single crank pin -- that is decades out of date. "It's slow, it's cumbersome, it's heavy," said Mr. Wolf. "Nobody would build anything like that but Harley."

That's where he's wrong. For years, the Japanese made engines that were considered superior to Harley's. They were more efficient, more powerful, faster. But now, the Japanese have learned their lesson. Many of them are coming out with engines just like the Harley's.

Why? Because Harley, with its clunky, antique engine, is creaming them in the marketplace. After nearly going into bankruptcy 20 years ago, Harley has roared back to life. It is now the No. 1 producer

of big bikes -- cruisers -- in the world. Customers are being told they have to wait up to two years to purchase a brand-new Harley. Used Harleys now sell for far more than their original price.

"I can't keep a Harley," said Mr. Wolf. "Every time I have one, someone offers me a lot of money for it."

Bike of a nation

Harley's change in fortune has come by marketing itself as a true-blue American icon, the link to the romantic image of the rebel biker, as portrayed by Marlon Brando and Peter Fonda. It even puts out a catalog of its own black leatherware. You, too, can have that vaguely disreputable Wild Bunch look, at least on the weekends.

Harley's competitors have reacted to Harley's success by trying to copy its features, including that engine sound.

The Harley has become so popular that it has spawned a so-called "after-market" in which manufacturers produce exact Harley clones without using any Harley parts at all.

Harely wants to stop them. "Our competitors have said, 'We want to get in on Harley's success,' " said Mr. Piehl. " 'We're going to change our motorcycles so they look more like a Harley and sound more like a Harley.' We're saying that sound is ours, it's our asset."

Some attorneys following this case are not convinced that trademarking Harley's engine noise is fair play. A trademark, they say, is not the product itself but a mark of identification. None of the other sound trademarks are intrinsic to the product itself. The NBC chimes have nothing to do with broadcasting. The lion's roar is not instrumental in MGM's movie-making.

But the Harley's engine noise is the direct result of its engine configuration, and Harley does not own a patent on that design. It didn't even invent it.

"If there's nothing that precludes [competitors] from building that engine and if the sound . . . is an inherent result of building that engine, the competitors are entitled to do it," said Max Stul Oppenheimer, a trademark specialist at Venable, Baetjer and Howard.

All ears

Should Harley be successful, there would result the almost insurmountable problem of trying to determine when another engine sound was too similar. The engine sound cannot be defined by musical notes or words. While many motorcyclists might be able to discern clear differences among motorcyclists, others would be like Mr. Oppenheimer.

"If it's me," he said, "it's all just noise."

If lawyers can't figure it out, perhaps other experts can be enlisted, experts such as Maggie and K.C., two yapping Yorkshire terriers belonging to the Krafts. Whenever a Harley roars down the street outside the Kraft home, the dogs raise their pointy heads in the expectation that one of their masters is returning.

But if it's a another type of bike, a Kawasaki or a Yamaha, for instance, Maggie and K.C. won't deign to show the slightest interest. "If it's a Japanese bike," says Mrs. Kraft, "they ignore it."

There you have it. Proof positive of the uniqueness of the Harley-Davidson sound. Now the question is, can Harley get Maggie and K.C. under oath?

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