Chippendales and Playboy – Trade Dress in Adult Entertainment

Chippendales sought to register the “cuff & collar” look of their male dancers with the United States Patent and Trademark Office, and ultimately failed. The USPTO denied Chippendales’ attempt to register this trade dress because the “Cuff & Collar” look was not inherently distinctive, a requirement for trademark registration in the United States. 

The term “trade dress” refers generally to a business’ overall look and feel, and can be a registered as a trademark if it is inherently distinctive and serves to identify the source/origin of a product. This is a separate concept from rights in a trademark or logo, which typically covers just a logo or company name.

A federal court has stated that trade dress may include “features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” For example, in the famous (at least for trademark nerds!) Taco Cabana v. Two Pesos case, two Mexican themed restaurants were in litigation over restaurant decor, where Taco Cabana described its decor as “a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme.

Chippendales, a company providing live, male exotic dancing services, sought trademark registration in look of their male dancers, who wear only a bowtie collar and cuffs in place of a shirt. The company has been in existence since 1978, and adopted the “Cuff & Collar” look in 1979. They claimed that this unique uniform served to uniquely identify Chippendales as the provider of the exotic dancing service. However, the Federal Circuit doubted the distinctiveness of the uniform, and upheld the denial of registration by the USPTO.

Marks sought to be registered must be inherently distinctive. If a mark is generic or merely descriptive, U.S. trademark law will not allow a single company to have a monopoly on a generic mark, as these marks must be reserved for the general public use to effectively communicate.

In the Chippendales case, the court paid particular attention to the existence of a “Sexy Bunny Costume” for sale at a costume store, as well as  Chippendales’ own expert witness referenced an article stating “The collar and cuffs, like the bunny suit which inspired them, has become a trademark recognized, wherever women take their entertainment seriously, as a symbol of professional and sexy fun.” How embarrassing for the legal team!

Because of this ruling, the public can continue to freely and safely use the cuff and collar look without starting a ticking time-bomb for trademark infringement.

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