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”?
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?
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.
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.
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?
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.
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