The U.S. Navy may have more of an effect on fashion they know as the Navy is set to have a registered trademark on a camouflage pattern used on its uniforms. The mark at issue is for the NWU 1 pattern, a pixelated black, gray and navy blue design. The trademark office initially refused to allow the Navy to register the pattern as a trademark on the grounds that the mark is purely functional and ornamental. However, the Trademark Trial and Appeal Board ("TTAB") held otherwise. The TTAB stated that while the Navy was unable to establish that its print functions as a trademark, it was able to show that due to actual use of the print, it has acquired the necessary distinctiveness in the eyes of the public.
Initially, the U.S. Patent and Trademark Office turned down the trademark application on the basis of the pattern being both functional and ornamental. The Navy appealed stating that the pattern was neither functional or ornamental and that the pattern and logo met the needs of distinctiveness. After the examiner first gave grievance to the pattern being functional in terms of effectiveness for concealment, he recanted at the objection of the Navy and changed his stance to it being functional for hiding stains.
The disposition points out that the Lanham Act – the federal statute that governs trademark law – prohibits the registration of a mark that comprises any matter that, as a whole, is functional. In general terms, the design as a trademark if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. The Navy pointed out in their defense that they could have chosen any pattern for their needs. In the end it was agreed by the TTAB that the pattern was not functional and that alternative patterns could have been utilized for concealing stains. A final request was made that the descriptions for the pattern and logo be altered to not include any unnecessary language inevitably resulting in an approved trademark.
But do not get ahead of yourselves, designers. Mark McNairy and other designers, on the other hand, may not be able to run out and trademark their camo prints. According to the Navy's trademark application, the mark is limited to goods "to be sold to authorized patrons of the military exchanges pursuant to Armed Services Exchange Regulations.” So, while this case provides interesting insight into trademark law, it doesn't seem like it will help designers out just yet. However, copyright protection is likely an option for prints, such as Jimmy Choo's or McNairy's, and even the one that Marc Jacobs and Takashi Murakami collaborated on, which introduces an interesting combination of copyright and trademark issues that we will discuss another time.
UPDATE (4/23/16): The Navy is opting to discontinue use of trademarked pattern. The digital blue Navy Working Uniforms – also known as the NWU Type I – were a fleet mainstay until 2013 after they were found to be unsafe to wear while fighting a fire. One plan is ditching these blue Navy working uniforms in favor of their green cousin. The service could potentially save millions by switching to the woodland camo already worn by Seabees and master-at-arms. The green-and-tans are also not flame-resistant but would be the standard for ashore wear; flame-resistant coveralls and flight suits are mainstays for at-sea wear
This is a move that has been quietly discussed by leadership in recent years. The Navy has spent $224 million just to develop and initially field the NWU Type I's, according to a 2010 Government Accountability Office report.