Hollywood’s Trademark Troubles

There’s something about MGM-Pathe that stirs the blood.

Ever since the two film companies became one last November it has made almost daily appearances in financial reports from Milan to Culver City to Rarotonga over ownership and financial squabbles.

Now with one movie it has tripped over the toes of two large American corporations.

In what must seem a brilliant marketing move to some at the studio, it titled one of its upcoming summer releases “Harley Davidson and the Marlboro Man.”

Two macho, high-recognition names in one.

MGM-Pathe also got two separate sets of legal demands from Philip Morris, owner of the Marlboro trademark, and Harley-Davidson that those names and products not be used in the film.

Despite the threats of legal actions, MGM-Pathe most likely will come out of this trademark fight undamaged. There is a growing collection of precedent on its side in such film titles as “Southern Comfort,” “The Coca-Cola Kid,” “The Adventures of Ford Fairlane” and “Cadillac Man.”

American corporations are strong guardians of their trademarks, ready at the hint of a copy cat, clone or rip-off to write challenging letters and to threaten heavyweight legal actions ranging from injunctions to courtroom appearances. And for good reason. The economic value and the good will generated by many trademarks and their symbols represent large sums of money and years of development.

Most trademark suits involve the unauthorized use of a name or a product similar to the product of the trademark owner.

But MGM-Pathe isn’t selling cigarettes or road hogs, it’s selling a creative pursuit that falls under a First Amendment right to freely tell stories. And if one of the characters happens to be given the name Harley and the other is nicknamed Marlboro Man, so be it.

The dust-off between the filmmakers and the corporations is similar in many ways to a recent fight over the use of trademarks and brand names in another artistic pursuit. Bret Easton Ellis and his adopted publisher, Vintage Books, earlier this year came out with “American Psycho,” the story of a serial killer with an equal lust for designer labels. The novel alienated feminist and humanist groups for its violence. It also angered certain companies, especially American Express, because their brand names spilled out all over the pages, and frequently in relation to illegal acts.

Vintage responded by taking the unusual move of publishing a disclaimer in the book declaring that any references to products as well as certain figures “ . . . are not intended to . . . disparage any company’s products or services.”

What has angered Philip Morris about the use of the Marlboro name beyond the trademark problem is that cigarette companies increasingly find themselves looking for the high ground in defending their place in society.

They can’t advertise on television yet they are at times accused of placing their products in movies that eventually get on television. Their sponsorship of pop concerts and athletic events is criticized for mixing supposedly healthy activities with smoking.

Here we have Philip Morris trying not to get its cigarettes into the movies, trying to avoid any accusations that it is trying to influence the millions of young people who go to movies and then discovering that its Marlboro Man somehow got to Hollywood.

Harley-Davidson’s problem was different. It had its own separate deal with another cigarette company in sponsoring races and motorcycle competitions. It didn’t want to damage that with a Marlboro co-billing. Despite the urgings of MGM-Pathe to show Harley-Davidson products, the motorcycle company refused, so Mickey Rourke, the Harley of the movie, rides a Kawasaki.

As in Philip Morris’ case, the First Amendment argument may be the clincher for Harley-Davidson’s attempt to stop the use of its name.

One Harley official said the company would consider the rather unusual tactic of a defamation of character suit if its name is used in a possibly damaging way. That’s why the company plans to ask for a shooting script or preview the movie. It’s also putting a lot of confidence in Rourke to maintain the company’s name.

“He owns a Harley,” the official said.

Both Harley and the Philip Morris people might want to check out another trademark hassle of a few years back. Hemdale Film Corp. once had plans for “USA Today,” the movie. But that title never made it. Hemdale couldn’t get, as one spokesman offered, “sufficient clearances.”

The movie did come out, however. Retitled, strangely enough, as “Made in the U.S.A.”