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Spring Break Trade (Un)Dress

Just in time for Spring Break, the 11th Circuit is preparing to hear an appeal from Hooters, which claims that rival sports bar/grill Winghouse has stolen its trade dress in the form of the infamous "Hooters Girl."  The venue?  You guessed it -- Florida. 

Below are the two tackiest pictures ever to grace the pages of Counterfeit Chic.  On the left, semi-clad in her white logo tank top and orange nylon running shorts, the Hooters Girl.  (Orange.  Nylon.   Shorts.  Need we say more?)  On the right, in a black logo tank top and running shorts, the Winghouse Girl

Hooters magazine #56

In order to prevail on its trade dress claim, Hooters would have to prove that (1) the Hooters Girl, the predominant feature of its trade dress, is "inherently distinctive" or has at least come to remind customers of the restaurant (has acquired "secondary meaning"), (2) the Hooters Girl is predominantly non-functional, and (3) that the Winghouse Girl is confusingly similar. 

According to the District Court, 347 F. Supp. 2d 1256 (M.D. Fla. 2004), the claim fails as a matter of law because the Hooters Girl in uniform is primarily functional.  And we're not talking about serving food and beverages.  The judge found that "the Hooters Girl's predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies.  She is the very essence of Hooters' business."  Must be the orange nylon.

The Hon. Anne C. Conway further noted that while servers in both establishments wear tank tops and shorts, "Hooters cannot monopolize this generic theme any more than an upscale steak restaurant featuring tuxedo-clad servers could preclude competitors from using the same or similar uniform."  (Thank you for the substitute image, your honor; we'll focus on the tuxedos instead.)  Thus the court concludes that "the Winghouse Girl, with her black tank top and black running shorts, is not a 'knockoff' of the Hooters Girl."

The disposition of this case on appeal remains to be seen.  Rumor has it, however, that a record number of judicial clerks have offered to review the evidence.

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Comments

According to my cousin, who's lived in Florida since the late 70s, Hooters itself ripped off a place called -- wait for it-- MELONS, that was pretty much the same concept. Hooters apparently ran with it and struck gold, while Melons eventually bit the dust. So you never know who originally ripped off whom, no matter what color nylon.

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