Posted by Abe Sauer on October 4, 2010 03:00 PM
Pop quiz: What brand is inherently represented by shirtless men wearing nothing but bow-tie collars and sleeve cuffs? If you answered "Chippendales," the iconic all-male erotic dance revue founded in the late 1970s, you're wrong. The correct answer is every brand ... or no brand at all.
At least, that is, legally. According to the Trademark Trial and Appeal Board, and now affirmed by the United States Court of Appeals, Federal Circuit, the "Cuffs & Collar Mark" is "not inherently distinctive." Sorry, Chippendudes!
Of course, the key word here is "inherently." The Chippendales brand does own a trademark on the "cuffs and collar mark," granted to it in 2003 (Trademark Registration No. 2,694,613). But then two years later, Chippendales again argued the mark was "inherently distinctive."
The Trademark Board again denied Chippendales' claim noting that "at the risk of stating the obvious, while trade dress used with services may be inherently distinctive, not all such trade dress is inherently distinctive." Chippendales appealed and, now years later, have finally lost.
But Chippendales already had a registered (and "incontestable") mark; so why challenge for "inherently distinctive" status?
An inherently distinctive trademark is one that has not "acquired distinctiveness." That is to say, it is a set of brand values that until used by the brand in question, had never been seen of exhibited before. So what Chippendales is arguing for here is recognition as the inventor of the "cuffs and collar" mark. Naturally, this missed "distinction" leads many to wrongly report that "Chippendales fails to trademark outfit."
For Chippendales, one advantage of having its trademark recognized as inherently distinctive is a strengthened position when enforcing its trademark. But as the board ruled that stripper costumes are often, and have long been, "professional" in nature, Chippendales has no claim to inherent distinction. This means that you can still acquire one of many generic "male stripper" or "male dancer" costumes, which are just essentially a set of cuffs and a collar.