Hooters is suing to enforce its “trade dress,” and the question before the 11th Circuit is whether the “Hooter Girl” persona is “functional” — and therefore open to imitation.
The case presents an interesting example of the intersection between the role of “things” in law — which I’ve posted about before — and the doctrine of “aesthetic” functionality in trademark law. In the words of the Supreme Court, would granting Hooters trademark-related protection for the “look” of its servers put Hooters competitors at a non-reputation-related disadvantage? Would Winghouse (the defendant in the case) still be able to compete with Hooters if it couldn’t have its servers wearing tight tank tops and revealing shorts? If the law deems the outfitted Hooters girls to be symbols — objectifying them one more time, as Britney Spears might say — then Hooters wins; if the law deems them to be people — notwithstanding their obvious objectification — then Hooters loses.
Let’s reduce the question to its essence: Can Hooters put tight-fitting uniforms on young women and in so doing declare that they are trademarked “things”?