dissenting.
Because I believe Harley Davidson v. Grottanelli, 164 F.3d 806 (2d Cir.1999), cannot be credibly distinguished from this case, I respectfully dissent.
Specifically, I disagree in part with the majority’s statement that the Second Circuit “never stated that ‘hog’ was generic as applied to a motorcyclist club or to motorcycle products or services.” It is true that the court did not discuss motorcycle clubs, but, as to the other half of that statement, it is clear that the entire Grottanelli opinion is about motorcycle products and services. Grottanelli was not manufacturing motorcycles he called “Hogs.” He was using “hog” to name his products and services: Hog Farm, Hog Farm Holidays, Hog Holidays, Hog Wash engine degreaser, and a Hog Trivia board game. And the court specifically concluded:
For all of these reasons, Harley-Davidson may not prohibit Grottanelli from using “hog” to identify his motorcycle products and services. [Emphasis added.]
At 812. It is, I think, disingenuous to attempt to distinguish something like “Hog Holidays” from cruises called “HOGS ON THE HIGH SEAS.”
Even Harley recognizes the difficulty in making that distinction, a difficulty it tries to overcome by inviting us to leap to the conclusion that Top Quality is using HOGS to refer to a club for motorcyclists, thus taking it out of the reach of Grottanelli. The majority, regrettably, accepts Harley’s invitations. With all due respect, I cannot see that conclusion as anything but strained. I see nothing in Top Quality’s logo, or in the way it uses the word “hogs,” which indicates that it is referring to a motorcycle club. It’s referring to motorcycles, plain and simple.
Because Top Quality’s use of the word does not refer to motorcycle clubs, we should afford preclusive effect to Grotta-nelli, a decision which provides considerable support for its conclusion that “hog” as applied to motorcycles is generic. The Second Circuit’s careful analysis traces the history of the word as applied to motorcycles to the 1960s and 1970s. The court points out that in 1965, Newsweek and the Saturday Evening Post referred to “hog” as a “big motorcycle” and a “lean, dangerous beast.” In 1967, Hunter S. Thompson quoted the Los Angeles Times, saying a hog was “the kind of cycle the German couriers used to run down dogs and chickens — and people — in World War II: low brutish machines, with drivers to match.” Grottanelli, at 808 n. 2. The court also cited dictionaries noting that a hog was a motorcycle, especially a large one, and a 1975 article in Street Chopper was entitled “Honda Hog.” The metaphoric use of the word increased during the 1970s and 1980s, and it was often, no doubt, applied to Harley-Davidson motorcycles. But for several years Harley, Grottanelli tells us, tried to dissociate itself from the word “hog.” Then in the 1980s, the company, apparently thinking that if you can’t beat ’em, join ’em, changed course and started using the word. It also formed its club — H.O.G.—shorthand for the Harley Owners Group. Which is all fine and good. But, as Grottanelli holds, Harley can’t commandeer and claim as its own the generic slang term “hog.” We should *764brand that attempt as hogwash and affirm the grant of summary judgment for Top Quality that was entered by Judge Clevert in the district court.