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In re Chippendales USA, Inc.

622 F.3d 1346 (2010)

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In re Chippendales USA, Inc.

United States Court of Appeals for the Federal Circuit

622 F.3d 1346 (2010)

Facts

In 1979, performers for Chippendales USA, Inc. (Chippendales) (plaintiff) began wearing tuxedo wrist cuffs and bowties without a shirt, known as the “Cuffs & Collar” costume. In 2000, Chippendales applied to register the Cuffs & Collar trade dress with the United States Patent and Trademark Office (PTO). Although the examining attorney did not find that the mark was inherently distinctive, the PTO registered the mark for “adult entertainment services, namely exotic dancing for women” because the mark had acquired distinctiveness through Chippendales’ five consecutive years of substantially exclusive and continuous use of the mark in commerce. In 2005, Chippendales filed to register the Cuffs & Collar mark again on the basis that it was inherently distinctive. The examining attorney found that the Cuffs & Collar mark was not inherently distinctive, and the Trademark Trial and Appeal Board (Board) affirmed. The Board found that the Cuffs & Collar design was of the type commonly used by exotic dancers’ dressing in various provocative uniforms for their performances. Furthermore, because the Chippendales’ particular costume was inspired by and utilized similar features as the Playboy bunny suit, the Board found that this particular costume was not unique or unusual in this market. Chippendales appealed this decision.

Rule of Law

Issue

Holding and Reasoning (Dyk, J.)

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