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CAFC Weekly: October 1, 2010

by Orlando Lopez and Bruce Jobse

Although in the past we have not commented on trademark cases in this section of the blog, we do typically report on them in the IP in the News section; however, this week the only precedential case was an appeal from a Trademark Trial and Appeals Board (TTAB) decision.

In the decision In re Chippendales, Chippendales USA appealed the decision of the TTAB affirming the examiner’s determination that the Chippendale “Cuff & Collar” trade dress (or trade undress as the case may be) is not inherently distinctive.  The prior TTAB decision had cited the similarity with the Playboy mark and the fact that “it is not unusual for exotic dancers to ‘wear costumes or uniforms which are . . . revealing and provocative.’” The TTAB cited examples of the provocative costumes (probably some unfortunate Board member had to do this research), such as “a stripper representing either a doctor wearing a stethoscope, or a construction worker wearing a utility belt, or a cowboy wearing chaps and a ten-gallon hat.” The CAFC, utilizing the criteria for inherent distinctiveness of trade dress that had been detailed in prior opinions, affirmed the TTAB decision holding that Chippendales’ “Cuff & Collar” costume mark is not inherently distinctive for “adult entertainment services, namely exotic dancing for women,” and further agreed with the TTAB that the Chippendales’ mark is a mere variant or refinement of the “pervasive Playboy mark, which includes the cuffs and collar together with bunny ears.”

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