Like many other similar establishments, Playboy Clubs offer food, drink, and entertainment. Unlike any other establishment, however, the servers at the Playboy Clubs are young, beautiful women who wear costumes with rabbit ears and tails. They are called “Bunnies,” and they must fit the “Bunny Image” in order to be hired and retained in their position. Bunnies must meet certain high appearance standards and are evaluated on the following scale:
(1) – A flawless beauty (face, figure, and grooming)
(2) – An exceptionally beautiful girl
(3) – Marginal (is aging or has developed a correctable appearance problem)
(4) – Has lost Bunny Image (either through aging or an uncorrectable appearance problem).
A Bunny Manual provides the rules governing the appearance and behavior of the Bunnies. It details, for instance, that Bunnies are never allowed to chew gum or sit down while on duty. They are not allowed to date customers or have bad hair, bad nails, bad makeup, or a dirty tail.
When a business like the Playboy Club decides on a strategy to differentiate itself from its competitors in the marketplace, often this will lead to the creation of intellectual property (“IP”). The Playboy Bunny costume is reported to be the first uniform registered as a trademark. The mark is described as “a three dimensional bunny costume worn by a woman. The costume includes a corseted bodice, bunny ears worn on the head, a bunny tail on the back of the bodice, a name tag on the front of the bodice, wrist cuffs and a bow tie collar.” It goes without saying that Bunnies must be female.
In today’s marketplace, service companies are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. This then necessarily influences hiring decisions. If the Playboy Bunny costume is trademarked, only a person who fits the Bunny Image will wear that costume. No men and likely no women over a certain age (who no longer meet the appropriate proportions) will be hired as Playboy Bunnies.
If a business decides not to hire a prospective employee because she does not fit the company’s image and that decision is challenged under antidiscrimination laws, to what extent should IP law serve as a defense for the company’s employee selection? While the role of IP in employment generally is not new, no scholar has previously explored this aspect of the intersection: the role of IP in an employment discrimination claim. As it currently stands, employment discrimination law does not consider IP in any capacity. Accordingly, this Article is the first to suggest and examine bridging the worlds of employment discrimination law and intellectual property.
The objective of this Article is to introduce the idea that there could be a place for IP in employment discrimination jurisprudence. The proposed mechanism for integrating these two areas is through a flexible “IP Defense” that would require an employer defending an employment discrimination case on the basis of IP to establish that (1) it owns IP rights, (2) there is a relationship between the IP and the business practice that resulted in the employee selection decision, (3) the job description is tied to the IP, and (4) there is a direct financial correlation between the IP and the company’s business success.
