April 11, 2006
Hooters and "Trade Dress"
As long as we're not talking about contracts anyway, we'll mention the recent decision about whether it's it a violation of Hooters Restaurants' “trade dress” (no pun intended) to hire only young, attractive female wait staff and make them wear short-shorts and tank tops?
No, according to a federal district court decision out of Florida, which Hooters is appealing. Winghouse of Florida, a competitor, put its female wait staff in black short-shorts and tank tops (Hooters uses orange and white, respectively) with the Winghouse logo (not the Hooters owl) on the front. Hooters cried foul, claiming that it had exclusive rights to this particular form of sexploitation.
Apparently, though, Hooters ran afoul of the rule that trade dress which is merely ornamental or functional is not protected. The “ornamental” part seems to be a given, but Hooters also lost on the “functional” part, since the point of the dress, as it conceded, was to “provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies.”
Randy Broberg of L.A.’s Allen Matkins Leck Gamble & Mallory offers a rundown of the decision in Hot Wings and Hot Pants.
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