The Hooters “Trade Dress” Case

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I decided not to comment on the Hooters trade dress case (Hooters v. Winghouse of Florida) when the district court decision came down because it didn’t seem like the legal issues were very interesting. It received substantial media coverage only because the claims at issue pertained to busty, attractive wait staff and skimpy, revealing outfits, and I didn’t have much to add to the wink-wink treatment it received in the trademark law blogosphere (see e.g. this, and this, and this).

The affirmance by the Eleventh Circuit lead to more attention, including this passing summary at Feministing in an omnibus “feminist reader” post:

The 11th Circuit Court of Appeals reaffirms a ruling that waitresses in tank tops and tiny track shorts are actual products, not symbols that can be trademarked. Disgusting.

The Feministing mention linked in turn to this post at Lawyers, Guns and Money, which in turn links to, and apparently relies on, this Law.com article. All three make what I believe is an interpretive error when they assert that the “Hooters Girls” themselves were at issue. As page three of the district court decision makes clear, it is the “Hooters Girl uniforms” [emphasis added] that were unsuccessfully alleged by “Hooters” to constitute protectable trade dress. The WSJ Law Blog gets this (mostly) correct here, stating in pertinent part:

The 11th U.S. Circuit Court of Appeals upheld a Florida trial court decision last week in ruling that the Hooters’ girls’ skimpy waitress outfits don’t deserve trade dress protection. Here are the appeals court and district court decisions. …

In 2003 Hooters sued Ker’s Winghouse, a Florida restaurant chain, alleging that the”Winghouse Girls”outfits were confusingly similar to those of the”Hooters Girls.”A federal trial court judge in Orlando ruled against Hooters, stating that the Winghouse Girls outfits weren’t a”knockoff”because the Winghouse Girls wear black tank tops and black running shorts while the Hooters Girls sport white shirt and orange shorts.

Also, reasoned the trial court judge, the”Hooters Girl”is”the very essence of Hooters’ business,”whose”predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies.”Therefore, it had a”primarily functional”purpose and was not entitled to trade dress protection.

(NB: My quibble with this account is an appended parenthetical which states: “By comparison, its distinctive orange color and owl logo would qualify for trade dress protection.” In fact, the owl logo qualifies for and appears to be the subject of federal *trademark* registration, which is a different and generally more powerful bundle of monopoly rights under the Lanham Act.)

A successful trade dress infringement claim requires a plaintiff to prove the trade dress at issue is inherently or distinctive or has secondary meaning, and is primarily nonfunctional. The plaintiff must also convince the trier of fact that the defendant’s trade dress is confusingly similar. Through this litigation, Hooters was trying to obtain a monopoly on the ability to have women in tight, revealing tops and short running shorts serve food in a restaurant, apparently believing that this would give the chain a competitive advantage. Hooters was able to establish the distinctiveness of the particular uniform it has its waitstaff wear, but not that the uniform was primarily nonfunctional. The court noted that the uniform has an obvious function: In conjunction with the person wearing it, the uniform provides “vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies,” (see dist. ct. decision at page 4). This is not something that the law allows Hooters, or any entity, to monopolize through application of the Lanham Act.

In a couple of places in the decision, when the District Court opinion referenced the “Hooters Girl,” the judge was perhaps being a little bit sloppy in not making it clearer that only the Hooters “uniform” was at issue in the trade dress claim. I don’t, however, think it can be fairly read as asserting that “women in tank tops are products” in any generalized way, outside of the paradigmatic trade dress claim evaluative framework.

Even though the case was between two restaurant chains that rely on scantily clad women to entice customers to purchase crappy overpriced food, and I secretly (whoops, not anymore) wish bankruptcy on both of them, the Lanham Act geek in me was happy to see the district court correctly interpret and apply the law, and the Eleventh Circuit affirm. The ruling is also a small victory for women, as a victory for Hooters might have meant that competing restaurant chains would have to put their wait staff in bikinis or cellophane wrap or even more awful costumes to avoid “infringing” upon tank tops and running shorts.

–Ann Bartow

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