(CN) – Chippendales USA can’t trademark the bowtie and shirt cuffs costume worn by its shirtless male erotic dancers, the Federal Circuit ruled.
The U.S. Patent and Trademark Office rejected Chippendales’ trademark application in 2000, declaring that the “Cuffs & Collar” outfit was not “inherently distinctive.”
The federal appeals court in Washington, D.C., agreed, noting that an expert witness for the erotic dancer company admitted that the “abbreviated tuxedo” was influenced by the Playboy Bunny suit, made famous in the 1960s.
“The Playboy bunny suit, including cuffs and a collar, was widely used for almost twenty years before Chippendales’ first use of its Cuffs & Collar trade dress,” Judge Timothy Dyk wrote for the three-judge panel.
“The Cuffs & Collar mark is very similar to the Playboy bunny costume, although the Cuffs & Collar mark includes no bunny ears and includes a bare-chested man instead of a woman in a corset.
“The pervasive association between the Playboy brand and adult entertainment at the time of the Board’s decision leads us to conclude that the Board did not err in considering the mark to be within the relevant field of use,” Dyk added.
Chippendales argued that, in contrast to the bunny outfit, its costume was limited to use in the female adult entertainment industry, a distinction the court refused to make.
Dyk said the relevant market was adult entertainment, rather than “adult entertainment specifically for women.”
But the court sided with Chippendales on one issue: that the trademark office incorrectly lumped the cuffs-and-collar outfit in with other accessories used by erotic dancers, such as stethoscopes, construction worker utility belts and 10-gallon hats.
“It is incorrect to suggest that no costume in the context of the live adult entertainment industry could be considered inherently distinctive,” Judge Dyk wrote. “Simply because the live adult entertainment industry generally involves ‘revealing and provocative’ costumes does not mean that there cannot be any such costume that is inherently distinctive.”
Chippendales dancers first performed in the costume in 1979, shortly after the company opened its first club in Los Angeles.
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