Harley-Davidson has reportedly filed a lawsuit against clothing brand Affliction alleging it is selling T-shirts with designs that resemble its Bar-and-Shield logo. According to a report by the Milwaukee Business Times, Harley-Davidson filed suit against the California-based clothing company in the U.S. District Court for Eastern Wisconsin.

According to the Business Times, a Harley-Davidson dealer allegedly received a wholesale shipment of clothing from Affliction and noticed some of the designs had elements that looked similar to Harley’s trademarked logo. The dealer reported the shirts to Harley-Davidson, and company lawyers sent Affliction a cease-and-desist letter on Oct. 18 alleging trademark infringement on 20 products.

According to the Milwaukee Business Times, Affliction attorneys indicated nearly a month later the company would stop selling six of the items. That was not good enough for Harley-Davidson, which then proceeded to file suit.

Harley-Davidson is reportedly seeking penalties of $2 million per trademark per product type, profits from the sale of infringing items, compensatory and punitive damages, plus the cost of corrective advertising and attorney fees. The suit also seeks the destruction of existing products with infringing designs.

Looking through Affliction’s product catalog, it wasn’t difficult to find items that had elements that resembled a shield shape with a bar running across it. Pictured in the lead photo above is the reversible Affliction AC Motorcade shirt, and below, the Affliction Silent Eagle Chrome reversible shirt, pictured below.

The bar-and-shield motifs are not exactly identical to Harley’s design, but you can see a resemblance, particular with the Silent Eagle Chrome shirt’s orange and black colors. Designs do not have to be identical to be considered trademark infringement; there only needs to be enough similarity to cause confusion among consumers about the source of the product. Likely not helping matters is that these two items are part of Affliction’s motor-themed American Custom line.

A spokesperson for Harley-Davidson said in a statement the company is “legally required to exercise control over the use of our trademarks.”

“We make every effort to ensure consumers are not confused by the source of merchandise bearing our trademarks,” spokesperson Michael Pflughoeft said. “By altering and reproducing the Harley-Davidson logo for use on clothing, we believe Affliction has violated our trademark, and this violation could cause confusion among customers that Affliction is somehow affiliated with or endorsed by Harley-Davidson.”

The matter is now in the courts, but let’s put it to our readers: Do you think these designs infringe on Harley-Davidson’s trademark? Let us know in the comments below.

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  • Affliction is insane to try this stuff with H-D logos. I’m curious to see the response to the suit.

    • Born to Ride

      Pretty damn blatant. I saw the title of the article and thought “here we go” then looked at the shirt and saw that the suit is completely warranted from HD side. Idiots.

      • Joe Smith

        I disagree. I looked closely and the shields look nothing like the HD logo. I thought it’s the name that’s copyrighted, not any shield with a word written on it with a rectangle around the word. Another reason to hate HD and lawyers

        • denchung

          Nope, you can trademark logos. It doesn’t have to look exactly the same to be infringement, it only has to look similar enough that one could argue they’re trying to make it look like the trademarked logo to benefit from the similarity. You can’t just take, for example, McDonald’s logo, change the angle on the curve, claim it’s a generic rounded M and not golden arches and start selling fries.

          • Campi the Bat

            Sounds like *someone’s* never had a Big Mick from McDowell’s.

          • Joe Smith

            I’ll be coming to America and I plan to try it

          • Old MOron

            i don’t think it’s enough that one mark look like another. The similarity has to cause confusion in the consumer. If my golden arches look similar to McDonald’s, but people know I’m not affiliated with McDonald’s, it’s not a trademark infringement.

            The success of a lawsuit to stop the infringement turns on whether the defendant’s use causes a likelihood of confusion in the average consumer.
            https://www.nolo.com/legal-encyclopedia/is-it-trademark-infringement

  • HazardtoMyself

    Harley is probably more pissed about the Indians eating their logo than the logo itself.

    I didn’t even know affliction was still around. I thought that over priced t-shirt company died about the same time their failed MMA promotion did. Maybe this will be the final nail.

  • Sayyed Bashir

    Both HD and HA are serious about their trademarks.

  • Old MOron

    “…we believe Affliction has violated our trademark, and this violation could cause confusion among customers that Affliction is somehow affiliated with or endorsed by Harley-Davidson.”

    I agree that Affliction’s bar and shield resembles Harley’s. But not for a moment did I think Affliction were affiliated with or endorsed by Harley-Davidson. So if I were on the jury, I’d vote that it’s not an infringement because it does not cause confusion.

    • denchung

      Well… an important question, then, is why that box of Affliction shirts was delivered to the dealer that reported the problem. If the dealer received it, wholesale as was reported, with the initial understanding they were official Harley-Davidson-branded merchandise, then that’d be an example of confusion.

      • Old MOron

        How can it be an example of confusion when nobody was confused?
        Even though he received a wholesale shipment of clothing, the dealer knew this wasn’t Harley stuff, and he reported the shipment to Harley-Davidson.

        • denchung

          That’s likely what they’ll be looking at, if this goes to court. Wholesale goods don’t just show up randomly at stores. When, why and how did the Affliction stuff arrive at the dealership? Did the dealer seek it out and order them, knowing they weren’t from Harley? And if so, then why report it? Is Affliction actively trying to push its products to Harley dealerships?

          • Old MOron

            I think you’re suggesting that Affliction’s marketing/wholesaling practice is questionable. And you may be right.
            But I still don’t think that Affliction’s mark could be confused with Harley-Davidson’s.

        • Travis Donald Stanley

          Seems like HD did not do a good job of looking over the shirts before they ordered them.

          I’m disappointed in the shirt Company. That is too close.
          Plus, the shirts look bad.

  • Mike C

    Harley is right to sue, but it will be for a court to decide the matter.

    Of course, you can be right and still be a dick. Hiding behind ‘…the company is “legally required to exercise control over the use of our trademarks.”’ is a dick move. Say it like it is: we believe they are infringing on our trademark, which we take seriously. And I’m not sure going after a company after they have complied with a cease and desist request is the coolest thing to do…

    • denchung

      They only removed with six out of 20 items. I’m not sure that counts as being compliant.

  • elgar

    Harley Davidson litigating over copyright infringement? Shocking.
    Not really. Anyone remember when HD tried to copyright the ‘potato-potato’ sound in the ’80s?? HD is one of the most litigious corporations extant.

  • michael32853hutson@yahoo.com

    i didn’t agree with them until i saw that black and orange long sleeve T-shirt

  • Mike Hansuld

    I believe Harley is up set that its H-D dealers, are buying and selling the shirt instead of their H-D shirts.

  • mog

    For those who think H-D is wrong, try this idea.
    Some troll stands beside your favorite project for a picture.
    In the media, that person appears as if the proud owner.
    Do you feel good about it now?
    What do you say to folks who now doubt it was your project?

  • Eric

    Copyrights matter. This is a slam dunk case of infringement. As a designer myself, I have a huge problem with others copying and profiting of the work of others. Apple would do the same thing. So would Google, Honda, Ford, and any other company with a well-recognized corporate identity program. Developing an iconic graphic identity is not easy, and it’s worth a lot of money to the companies that design and use them.

    • therr850

      Ford advertises as “The Blue Oval” and Subaru and Kia both use an oval that is totally interchangeable with the Ford oval. They are not blue and have different art work but they are interchangeable with the Ford oval. Maybe Ford is missing out on some extra cash. OR, maybe H-D is too insecure of their position in this world.

      • Eric

        You can’t copyright a geometric shape in and of itself. Ford has sued in the past for the illegal use of their script and the use of its galloping mustang before, but they’d lose if they tried to sue over the use of the ellipse. That would be like trying to copyright a square as your logo. Squares have existed in the public domain for millennia, so you would likely be turned down for a copyright. It’s generally a unique combination of elements that are copywritable. Context also matters. Ford’s mustang logo doesn’t mean you can’t use horses in any advertising for any product at all, but they are definitely going to pay attention if you use horses in association with an automotive product. Affliction is clearly trying to associate their brand with motorcycling, and the logo is clearly trying to associate them with the Harley-Davidson brand. While you may not like the HD brand, copyright violations affect all of us, not just the individual companies being directly affected. One of the major sources of friction in our trade with China centers on their apparent lack of concern for intellectual property; Chinese companies routinely knock off designs for everything from high end purses to motorcycle designs, without paying royalties to the companies they are copying. This is considered stealing in most other parts of the world, but is a normal business practice there. This has much larger implications than I have time to articulate here, but if our companies don’t protect their copyrights and other IP here, they will have very little ability to protest these infractions in cases before the WTO.

        • therr850

          All I’m really saying is HD is the largest selling cruiser company in the US, their customers are the most loyal and I didn’t think the comparison was close enough to be mistaken by most anyone interested in motorcycles. They appear to be as insecure as the donald and are too willing to cast negative aspirations on pretty insignificant competitors.

          • VDoc

            therr850, I disagree. I think the logo is very confusing, and I’m sure a lot of people would be confused by it. But again, that’s for the court to decide. The H-D logo is such an unusual shape that the shape alone is used by the company to brand. Even the direction of the shape is important – that’s how you know what is “up” and what is “down” when bolting an add-on to the bike. (I know – you can also tell by the orientation of the product, but the logo makes it easy.) H-D has a really strong case here. More importantly, why doesn’t Affliction just come up with its own unique logo? That would be more responsible. They say that any publicity is good publicity, but in this case I think that’s incorrect. (I think Matt Lauer would also agree that all publicity is not good… But I digress.) I think there will be a real backlash from their target customers, who tend to be loyal to the H-D brand. And before we divert into why H-D customers are loyal to their brand (which is somewhat irrelevant to the conversation) please note that BMW, Kawasaki, and Suzuki customers are also loyal to their brands. Motorcyclists in general – just like car and truck owners – tend to like one brand more than others and look for authentic products from that brand. We (Americans) have the same brand-orientation with restaurants, clothing, shoes, and even grocery stores, so protection of the brand name is inherent to our economic DNA and is enforced by our laws.

  • DeadArmadillo

    Harley isn’t selling motorcycles, they’ve turned into a clothing store. No wonder they’ jump at he chance to try and sue someone.

    • VDoc

      I assure you, Harley is still in the business of selling and maintaining and flat-track racing motorcycles. They also brand extremely well, based on their motorcycles.

      • DeadArmadillo

        If they’re doing so great I wonder why they feel that they need to sue a second rate t-shirt manufacturer?

        • VDoc

          Your argument is a non-sequitur. You are implying that a successful company would not sue for copyright infringement, when in reality just the opposite is true. The only successful copyright infringement cases come from companies with value in your trademarks. That’s the basis of the suit – the trademark has significant financial value, which Harley Davidson’s bar and shield certainly does. It’s known all over the world, is one of the most widely known logos, and they make many millions of dollars even outside of direct motorcycle sales on the sale of merchandise with that logo. So to answer your question, Harley is suing precisely because they successful in marketing that logo. I have no idea how you feel about their motorcycles, but that is immaterial to this issue. This is a straightforward infringement on one of the world’s best known copyrights.

          • DeadArmadillo

            First, you may want to look closer at my picture to see how I feel about Harleys. Second, you might want to do a little research on Harley sales and revenues. Third, you sound like an attorney who probably doesn’t own a Harley and probably makes a living as a patent troll. And finally, IMHO, patent and copyright laws need to be vastly overhauled so as to stop protections for people and companies like Harley Davidson and their teams of lawyers. Ask yourself. What will it benefit the citizens of this country for Harley Davidson to win this lawsuit?

          • VDoc

            You may want to look a little closer at my picture to see that it’s highly unlikely I’m an attorney, at least as a primary occupation! And I’ve been a biker for 30 years now, putting more than 20,000 miles/year on my bikes. But all of that irrelevant. The more relevant issue is the one you raise, which is how does it benefit the citizens of the country for Harley to win the lawsuit. Well, this is not particular to Harley. It regards the purpose of copyright laws in general. The argument is they protect the assets, including intangible assets, of companies from undeserved profiting by entities not associated with the company. And that is of value, since it rewards the entities that develop the brand and encourages innovation and investment with the hopes of protected profits in the future. The same paradigm is used in patent laws for medications, although those are tempered with 17 year statutory limits. The brand protection, however, has no statutory limits on its copyright protection. A great example of this is Bayer aspirin. Aspirin is a remarkable drug, and was patented in 1899. It’s patent has expired 100 years ago, yet the brand name of Bayer is still protected. The patent allowed Bayer to profit and expand the use of the drug, and it’s expiration allowed other companies to eventually sell the drug much more cheaply. That’s a great example of how this works. Bayer was encouraged to develop and market the drug, which benefited billions of patients down the road, and industry itself got a boost when the patent expired. Brand patent reward companies for investing in the development of quality products represented by the brand, and that encourages innovation. So yes, I think H-D should easily win this. A better question to ask you is how would the abolishment of patent laws benefit society and the economy? If there were no patent laws, you would not be ale to tell one brand from another, and there would be no encouragement invest in the production of quality products. It would be easier to simply mimic another product and cut quality to undercut the price. The consumer would never know what he was actually getting. We actually see that in countries and markets where patents are violated. I guarantee you that the reverse-engineered BMW’s of North Korea are nothing like the real thing, no matter how much they resemble them. I would want to know I’m getting the real thing, and that takes respect for patent laws to occur.

  • Malcolm Turncoat

    Copyright is stifling american business, HD need to come out with better product