All this week I will feature posts on non-traditional trademark topics. Traditional trademarks are names, logos and slogans. Non-traditional trademarks are everything else the can function to identify the source of goods or services, such as shapes, colors, sounds, packaging, textures, and scents.
Costumes and uniforms can also be protected non-traditional trademarks. Some well know uniforms include UPS brown delivery uniforms; Dalls Cowboy cheerleader uniforms; the orange aprons worn by employees at Home Depot; Playboy bunnies; and the uniforms of many professional sports teams such as the New York Yankee navy blue pinstripes. What about the Naked Cowboy?
For example, here are some interesting registered costume or uniform trademarks [click image for USPTO records]:
- Transportation of travelers, namely, by air; international complex transportation, namely, transportation of passengers and/or goods by air; passenger transport; transport reservation; transportation information; transport brokerage; pleasure boat transport; car transport; aircraft rental; air transport agency, namely, making reservations and booking for transportation of passengers and goods by air; air transport; marine transportation agency, namely, making reservations and booking for transportation of passengers and goods by water; escorting of travelers; guide agency, namely, tour guide services; arranging of tours; travel reservation; booking of seats for travel; and tourist offices [Description of Mark: The mark consists of design elements and color combinations appearing on uniforms worn by flight attendants and other personnel when providing the services. Specifically, the mark consists of the color light blue applied to the uniform shirt, jacket and protruding scarf, a white shirt collar, a white name tag and beige skirt. The broken lines are not part of the mark and serve only to show the position of the mark on the uniform.]
- – ENTERTAINMENT SERVICES IN THE FORM OF COORDINATED CHOREOGRAPHED DANCE ROUTINES PERFORMED AT PROFESSIONAL FOOTBALL GAMES AND EXHIBITIONS AND AT OTHER PERSONAL APPEARANCES; PROVIDING SPORTS and ENTERTAINMENT INFORMATION VIA A WEB SITE ON THE INTERNET; FAN CLUB SERVICES [Description of Mark: The mark consists of a cheerleader uniform comprising a blue long sleeved, cuffed and colored half blouse which is tied in front, covered by a white-half vest with fringe on the bottom and featuring blue five-point stars outlined in silver, white mini-shorts with a “v” drop front featuring blue five-point stars outlined in silver, and white western boots]
- – entertainment services in the nature of tour guide services [Description of Mark: The drawing is a two-dimensional representation of the mark, which consists of the design elements appearing on the three-dimensional uniform worn by tour guides in association with applicant’s tour guide service. The mark depicts a stylized confederate uniform and consists of the hat, shirt, trousers and sash.]
- – delivery of personal property by air, rail, boat and motor vehicle [owned by UPS] [Description of Mark: The mark consists of the color brown which is applied to the clothing. The matter shown in the drawing in broken lines serves to show positioning of the mark and no claim is made to the configuration of the uniform.]
- – entertainment services in the nature of baseball games and exhibitions [Description of Mark: The drawing is a two-dimensional representation of the mark, which consists of the design elements and color combinations appearing on a three-dimensional baseball uniform worn by players in applicant’s games and exhibitions.]
- – Providing of food and drink; Pubs; Restaurant and bar services [Description of Mark: The mark consists of a three-dimensional server uniform comprising the following elements: a white, cropped, camp-shirt-style blouse featuring half-length sleeves notched at the hem, a flat collar with pointed tips, and long center-tie closure, underneath which is a red, black, blue, yellow, and white tartan plaid bikini-style top, below which is a bare midriff and a thigh-length kilt in the same red, black, blue, yellow, and white tartan plaid, with a shield-shaped patch in the front upper left corner. The patch features a stylized silhouette of a unicorn in black on a diagonally divided field of green and yellow. The uppermost portion of the patch is a horizontal black stripe with the wording “Tilted Kilt” in yellow. The uniform includes a black sporran with flap closure, worn over the kilt. The uniform also consists of white, cuffed, knee-high socks with red flashings and black shoes. The broken lines in the drawing are not part of the mark and instead indicate only the placement of the elements of the mark.]
- – Retail store services featuring a variety of appliances, building materials, plumbing supplies, roofing materials, home furnishings and items used in home improvement; consultation in the fields of construction, repair, maintenance and installation, and rendering technical aid and assistance with home improvement projects; landscape gardening design for others; interior decorating consultation [Description of Mark: The mark consists of an apron with two pockets, tie strings and a neck strap. Lining and Stippling: The mark is lined for the color orange.]
- – tax preparation services[Description of Mark: The drawing is a two-dimensional representation of the mark, which consists of the nonfunctional elements of a three dimensional Statue of Liberty costume.]
And here are some registered costumes:
- – Costumes, namely, Halloween costumes, masquerade costumes, and costumes for use in role-playing games; costume helmets, namely, Halloween costume helmets, masquerade costume helmets and costume helmets for use in role-playing games; Toy action figures and statuettes; collectible toy action figures; collectible toy helmets [Description of Mark: The mark consists of the three-dimensional configuration of toys and costumes.]
- restaurant services [Description of Mark: The mark consists of the non-functional elements of a three-dimensional taco costume. The drawing is a two-dimensional representation of the mark.]
- – restaurant services [Description of Mark: The mark consists of a group of three people wearing costumes with leggings simulating the legs and pinchers of a crab.]
Mascot costumes can also be trademarks. See details in my earlier post:Best Mascots: NCAA Edition
Note that if a uniform or costume is inherently distinctive it is entitled to registration on the Principal Register without having to demonstrate acquired distinctiveness. If the costume or uniform is not inherently distinctive, the registrant may need to show acquired distinctiveness or register the mark on the Supplemental Register.
Is the “costume” of Times Square’s “Naked Cowboy” protectable? It is not registered. And the Naked Cowboy recenly lost a claim against the soap opera “The Board and Beautiful” for an alleged take-off (and CBS had posted the video clip titled “The Bold and the Beautiful” and purchased YouTube ads using the keywords “naked cowboy.” See discussion on the Pattishall IP Blog here. The Naked Cowboy previously went after a woman calling herself the “Naked Cowgirl” and sued Mars, Inc. over an ad campaign featuring M&M’s wearing an allegedly similar outfit. Mr. Burck, aka the Naked Cowboy, has registered a logo with his likeness on it, but not a costume registration or a registration covering services.