Comments on: Hooters as Things

By: Feminist Law Professors » Blog Archive » The Hooters “Trade Dress” Case

Tue, 27 Jun 2006 09:42:13 +0000

[...] I decided not to comment on the Hooters tradedress 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 pertainted to busty, attractive wait staff, and I didn’t have much to add to the wink-wink treatment it received in the blogosphere (see e.g. this, and this, and this. [...]

By: Mike Madison

Mike Madison — Tue, 10 Jan 2006 00:06:12 +0000

My point — with which you’re free to disagree — was (and is) that Hooters is making the argument that each “Hooters girl” (i.e., the thing in question) consists of girl + costume. The question on the (legal) merits is really this: If the Hooters “girls” are really merely girls (so I’m wrong on my “thing” point), then the outfits are protectible, as outfits — and Hooters loses, or at least Hooters should lose, because it’s clear, to me, that there’s no likelihood of confusion between the Hooters outfits and the Winghouse outfits. Hooters only wins if it can persuade the court that appearance of the girls themselves — young, shapely women in tight tops and shorts — is part and parcel of the protected interest. On that score the Winghouse servers do appear to be similar to the Hooters girls, and the functionality argument — while interesting — isn’t a clear winner for the defense.

By: Chris

Chris — Mon, 09 Jan 2006 16:03:34 +0000

I question your analysis. It seems to me that if the Hooters girls are things, then their appearance is functional and not subject to trademark – Hooters loses. Whereas if the Hooters girls are people, their outfits are mere trade dress, and thus are subject to trademark protection – Hooters wins.

Or am I missing something?

By: MT

MT — Fri, 30 Dec 2005 07:18:38 +0000

Sorry: I don’t really find it obscure. I was pretending to be naive of sexual aspect of the case, which I figure must contribute at least a little to the interest the blawgosphere has taken in it, important abstract issues of law notwithstanding.

By: Mike Madison

Mike Madison — Fri, 30 Dec 2005 05:52:25 +0000

The scope of the functionality doctrine is hardly an obscure part of trademark law, with four relevant Supreme Court cases since 1992!, though a case could be made that trademark law itself is an obscure discipline. For obvious reasons, I won’t make that case on this blog! But the comment makes my point at least as well as I did. Here’s a pretty blatant example of confusing the “thing” protected by IP rights with the tangible “thing” to which the IP thing (in this case, the mark, or the trade dress) is physically attached.

By: MT

MT — Fri, 30 Dec 2005 02:03:54 +0000

Hooters are public domain. We ought to see the design of the costume and the trademark it embodies is in the costume, not in the elements of anatomy that it fails to obscure. Could another restaurant allow its waitresses to wear Hooters uniforms that were five sizes too big for them? Anyway, why are even talking about such an obscure matter of law?