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Fans of ?The Howard Stern Show? on Sirius/XM Satellite Radio will appreciate this trademark dispute.

On November 10, 2009, Howard had two females guests on his satellite radio show discussing their competing women?s undergarment products designed for women who wish to hide their visible cameltoe (a rundown of the appearance can be found at the show Rundown section of howardstern.com). For those not familiar with the term ?cameltoe,? click here for a definition from the Urban Dictionary -- also a simple Google search of the term will quickly enlighten you, but be forewarned that the search results are not likely to be safe for work.

One woman named Shannon was promoting her product ?Camelflage.? The second woman was named Treger Strasberg who had a competing product named ?Camelammo.? Much of the discussion on the show dealt with issues of patent law (who had the invention first, whether patent applications were similar, clarifying that a patent pending is not the same as an issued patent). There was really only a brief mention of the issue of the ?trademark? on the name ?Camelflage? ? with Trager pointing out that while Shannon may have filed trademark applications to register the trademark ?Camelflage,? it does not mean that it has been registered.

Fast forward to December 1, 2009, when Ruby Tuesday Designs LLC (?Plaintiff?) filed a trademark infringement lawsuit against Camelflage LLC (?Defendant?) in the U.S. District Court for the Eastern District of Michigan. See Ruby Tuesday Designs LLC v. Camelflage LLC, Case No. 09-cv-14676 (E.D. Mich). A copy of the complaint can be downloaded here (courtesy of Marty Schwimmer?s Trademark Blog, who also posted the Exhibit attached to the complaint detailing the ladies? appearance on ?The Howard Stern Show,? which turns out to be excerpted from the detailed Howard Stern show summaries written by Marks Friggins).

For ease of reference to their respective ladies from their appearance on ?The Howard Stern Show,? it will help the reader to know that Trager is associated with the Plaintiff in this case and Shannon is associated with the Defendant. In short, Trager followed through with her statements made during her Howard Stern appearance that she would be taking legal action against Shannon (albeit for alleged trademark violations rather than patent infringement claims ? likely because Trager does not yet have an issued patent).

According to the complaint, Plaintiff has been engaged in selling its cameltoe-masking undergarments under the mark KAMELFLAGE since March 2009 (Plaintiff registered the kamelflage.com domain name on February 17, 2009, which currently redirects to http://www.camelammo.com/, and cites to a March 31, 2009 New York Times article mentioning its products). The complaint includes the following picture:

On May 27, 2009, Defendant registered the domain name camelflage.com and two days later applied to register the work mark CAMELFLAGE for undergarments and other apparel on the basis of use-in-commerce (claiming first use date of March 15, 2009). On June 7, 2009, Defendant filed to register its CAMELFLAGE Design Mark (pictured below) for the same goods.

Defendant is currently selling its cameltoe-masking undergarments using the CAMELFLAGE mark through its website.

Plaintiff?s alleges that Defendant?s use of the CAMELFLAGE mark infringes on Plaintiff?s common law trademark rights to the KAMELFLAGE mark. Plaintiff?s causes of action for federal and common law unfair competition, common law dilution [ed. ? famous? Really?], and violation of Michigan?s Consumer Protection Act (M.C.L. § 445.903), and unjust enrichment.

The complaint specifically references the November 10, 2009 appearance by the parties on ?The Howard Stern Show? ? although it is described as Defendant refusing to cease and desist using the Plaintiff?s KAMELFLAGE mark. My own recollection of the interview was that the dispute was over the patent rights to the cameltoe masking invention ? not the name. In fact, while not specifically mentioned in the complaint, but certainly part of the transcript of The Howard Stern Show, was Treger?s acknowledgement that one of the reasons she changed her product name, originally called ?Kamelflage,? to CamelAmmo was because someone else already was using that name (while not specifically identified, she may have been referring to the intent-to-use trademark application for KAMELFLAGE for underwear and related goods filed by Karen A. Pratt on February 13, 2009, which is scheduled to register very soon since the Statement of Use filed in October 2009 was accepted by the PTO).

While Treger used this fact at the time as evidence that Defendant had intentionally created a knock-off product using Plaintiff?s ?old? name for the same product, her statements now seem to contradict the argument in the complaint that Plaintiff has been using the mark KAMELFLAGE in connection with her undergarments.

Plaintiff?s webpage now features the following image:

Unlike the picture of Plaintiff?s products included in the complaint (likely produced before Plaintiff had changed to the ?Camel-Ammo? name), the mark CAMEL-AMMO is clearly the primary trademark for the goods with the mark ?Kamelflage? relegated to a smaller position underneath (and which arguably would not necessarily be perceived by consumers as a trademark). {Query to Readers: does anybody know if this reference to ?Kamelflage? has always been there since the time Treger switched to the name ?Camel-Ammo? or was it possibly added to the website in light of recent events?}

So for you fans of cameltoe, this will be a fun case to watch (pun intended).

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