Chippendales cuffs-and-collar TM “distinctiveness” claim goes “gently” into that dark night
The male erotic dancer company Chippendales stumbled on Friday when an appeals court ruled that it could not trademark [sic] the bow tie and shirt cuffs that the men wear. The US Court of Appeals for the Federal Circuit said in a ruling which included a sketch of a fit gentleman shown from the waist up wearing only a bow tie and shirt cuffs that the US Patent and Trademark Office was correct in refusing to trademark [sic] the Cuffs and Collar costume.
“A fit gentleman”? Fit? Yes, certainly. But “gentleman“?
Well, “gentleman” has long ceased to mean “gentleman,” after all. I hear radio actualities where the cop says, “Then the gentleman proceeded to pistol-whip the granny and proceeded down toity-fifth street where he encountered the officers and was apprehended.”
And then, of course, there’s the “gentleman’s club,” inside of which the one thing you are not likely to encounter is, I can only speculate, a gentleman. There are websites like that too, I hear.
But more on that sort of thing shortly.
Yes, of course this “fit” bloke is a “gentleman”: Didn’t you read what the story said? Look what he’s wearing:
A bow tie! And detachable collar and French cuffs! Sure, the collar and cuffs are attached to nothing but air, but still — what could be more gentlemanly than that?
Which is all very well and good… but evidently not enough to constitute protectible inherent distinctiveness [see below re this correction — RDC]. Sliding in half a day ahead of me, Patently-O explains why (and provides a link to the opinion, here):
In particular, the Board noted that strippers often wear revealing would-be professional costumes such as a stethoscope, utility belt, or chaps with a ten-gallon hat. In this case, the Chippendales Cuffs & Collar costume appears directly derived from a Playboy Bunny costume [which also features a bow tie, detachable collar and French cuffs attached to nothing]. Based on these facts, the Board held that the Chippendales outfit failed the test for inherently distinctive trade dress outlined in Seabrook (CCPA 1977).
On appeal, the Federal Circuit first looked to determine whether the costume is part of the product design or only product packaging. That distinction is legally important because of the Supreme Court ruling in Wal-Mart v. Samara Bros (2000) that product design is never inherently distinctive. Here, the court held that the costume is product packaging — with the product being “adult entertainment services.” . . .
Here, the Appellate Court rejected the Board’s implicit holding that no costume on an adult entertainer could be inherently distinctive. However, the Appellate Court agreed with the Board that the Cuffs & Collar costume was a “mere refinement” of the well-known Playboy Bunny costume. As a result, the Cuffs & Collar costume failed the third Seabrook element and therefore lacks inherent distinctiveness.
Well, if “gentleman” doesn’t mean what it once did, don’t get me started on “adult” . . .
Either way, though, getting aced out by the Bunnies — that’s got to hurt. I do feel somewhat vindicated by the ruling rejecting the proposition that “no costume on an adult entertainer could be inherently distinctive.” Because I think I said something like that in my original post on this topic, or the comments to it.
Either way, it appears that the Chippendales boys are going to have to dance their way into the sunset, and the hearts of middle-aged women everywhere, without the coveted circle-R prestige that comes with “inherent distinctiveness.” Sorry . . . gentlemen.
UPDATE: Speaking of gentlemen — see Welch at the TTABlog on this story, and the comments here.
Then see the gentlemen below!!
Originally posted 2012-08-24 11:24:12. Republished by Blog Post Promoter