Bringing Out the Big Guns: U.S. Navy Wins Trademark Rights in Camouflage

After a half-decade of litigation, the U.S. Trademark Trial and Appeal Board ("TTAB") has awarded the U.S. Navy trademark rights in the camouflage pattern proudly worn by the aquatic armed forces. Our boys in blue now hold the exclusive right to patterns of "irregular block-shaped pixels that consist of a four-color pattern of black, deck grey, light grey and navy blue" printed on uniforms and other "merchandise."

Administrative Trademark Judge Jyll S. Taylor penned the opinion in In Re Navy Exch. Serv. Command, 77160754, 2012 WL 4832272 (Trademark Tr. & App. Bd. Sept. 29, 2012) granting the U.S. Navy rights in four separate trademark applications for varying representations of the contemporary camouflage design, overriding design functionality arguments put forth by the trademark office.

Interestingly, the appeal was not based on the trademark's functionality pertaining to camouflage's innate purpose of concealment. Instead, it was claimed the marks were functional because the patterns "mask stains and wear-and-tear, and thereby, the color pattern design is essential to applicant's requirements for a neat and clean Navy uniform" as deduced from U.S. Navy policies and regulations listed in internal documents, press releases and the organization’s website.

The T.T.A.B. authenticated the "neat and clean" arguments but pointed out that any patterned material would have the "inherent" function of hiding stains, rips, or other imperfections caused by the wear of clothing. This fact was further proven by the applicant's evidentiary admission of alternative camouflage patterns that accomplished this same fault hiding function. Other U.S. Navy requirements pertaining to uniforms, such as durability, cost, and ease of maintenance, were ruled to be completely unrelated to the patterns of clothing. Such utility derives from the type of materials from which the uniforms are made. Judge Taylor delivered: "Quite simply, there is nothing in [those] statements that persuade us that applicant's applied-for color pattern design is essential to the Navy's requirement for a neat and clean uniform."

This post was written by Ryan Westerman, an intern at Partridge IP Law.