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Of Chippendales, Tackiness and Trademarks

Chippendales If one sees a bare-chested male adorned in cuffs and bow tie, it sort of screams out Chippendales. But the U.S. Patent and Trademark Office apparently is unacquainted with the telltale garb of male exotic dancers. It denied Chippendales' application for a trademark on the cuffs-and-collar configuration as not inherently distinctive. Chippendales has appealed that decision to the Trademark Trial and Appeal Board, as John L. Welch reported yesterday at The TTABlog, and the TTAB will hear the appeal on Thursday.

At his blog Likelihood of Confusion, Ron Coleman believes Chippendales should prevail, tackiness of the outfit aside. "When we see this classy outfit we think 'Chippendales' every time," he writes. "Inherently distinctive? I’d say!" Of even greater interest, he says, is the concept of an apparel configuration as the subject matter of a trademark. It is, notes Chippendale's brief by Stephen Feingold of the law firm Day Pitney, an issue of first impression. While the law is clear that a costume can be trademarked, it is less clear that the law should apply to clothing that evokes a concept rather than a persona.

To prove that it does, Chippendale’s creatively secured the services of Rachel Shteir, the director of DePaul University’s theater school and a leading historian of American burlesque theater. She testifies that the Chippendale’s costumes are associated with "iconic characters," larger-than-life, recognized "types" that target audiences have no hesitation identifying. That, Chippendale’s argues, is exactly the case here, and that is why the outfit is inherently distinctive.

That brings the argument down to its bare essentials, but we'll have to wait and see whether the TTAB considers it too exotic.

Posted by Robert J. Ambrogi on December 2, 2008 at 11:35 AM | Permalink | Comments (1)


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