Chippendales Lose it All in Federal Court

The Chippendales have raised animal spirits around the world since 1979. The dancing men wearing their abbreviated tuxedo costume – shirtless with just a bowtie collar and wrist cuffs – have entertained bachelorette and GNO parties with, as their spin doctors indicate, unique skill and artistry.
But are the guys’ ‘Cuffs to Collar’ outfits unique and distinctive enough for a trademark registration?
A big issue in accepting a trademark application is whether the mark – in this case the ‘Cuffs to Collars’ – was in common usage and thus not distinctive enough for registration. When their application was refused on those grounds the boys appealed.
The Trademark Trial and Appeal Board noted two things. First, exotic dancers commonly wear costumes such as “a doctor wearing a stethoscope, or a construction worker wearing a utility belt, or a cowboy wearing chaps and a ten-gallon hat.” Yes, the judge just described the Village People, who were at it first, with more taste, and certainly with more musical ability. Second, the Board noted that the Chippendales’ outfits weren’t unique because they were inspired by the world renowned and recognizable Playboy Bunny suit.
The Chippendales didn’t take kindly to the ruling. They appealed again, this time to Federal Circuit Court. (In re Chippendales USA, Inc. Case No. 09-1370 (Fed Cir. Oct 1, 2010))The court, among other issues, held that the Playboy Bunny outfit had been widely used and for 20 years before the Chippendales arrived on the scene. The girls were there first. The Chippendales were just chips off the original block. Since they arrived after the Playboy Bunnies, there was nothing distinctive about the boys’ costumes. The trademark registration was refused.
Will this put the Chippendales out of business? Fear not, certain fans. It will not. But it does raise the question: Do you really need to try and trademark every aspect of your business?

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