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Does a Hooter’s Outfit Make the Burgers Tastier?
That was the question posed to the 11th Circuit Court of Appeals this week, and its answer: Kind of. A three-judge panel (PDF of the Case) took up an appeal of a district court case brought by Hooters against Ker’s Winghouse Restaurant, in which Hooters argued that the uniform the ladies of Ker’s donned infringed upon its trade dress protections. However, to obtain trade dress protection, Hooters had to prove that its style of uniform was not “primarily functional,” as trade dress laws only protect “inherently distinctive, nonfunctional trade dress from infringement.”
The case was originally brought after Hooters claimed that Ker’s outfits, which consist of black tank tops and black running shorts, were too similar to Hooters sport white tops and orange shorts. The district court ruled, and the 11th Circuit agreed, that the Hooter’s uniform was primarily functional, in that its overriding purpose was to “fulfill customers’ expectations and desire to see, be entertained by and interact with a sexy, barely clothed Hooters girl.” In other words, that uniform’s main function was to make sleazy men forget about the terrible wings and the watered-down beer and focus on those white tank tops and what’s barely hidden beneath them. Hooters, for its part, argued that the uniforms were not functional because there are alternative ways to have half-naked women sell food, such as — I’m assuming — offer a free lap dance with the purchase of a burger and fries.
Hooters also offered up a more novel, yet specious argument, asserting that the Hooters uniforms could not be considered functional because they did not make the “food taste better or the beer cheaper.” The 11th Circuit, however, clearly disagreed. And, if you want a good read, check out the district court’s original opinion (in PDF via How Appealing), in which the following line, read out of context, might send a few guys into a fit of despair: “Without Hooters Girls there would be no Hooters.”
