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Soon, it seems, judges on the U.S. Court of Appeals for the 11th Circuit may be taking a close-up look at the short-shorts and tight tank tops of the Hooters Girls. No, it’s not a risqu� outing with the clerks, but a dispute over whether the restaurant chain’s trademark scanty outfits deserve legal protection. Hooters of America Inc. brought claims of trade-dress infringement and unfair competition against Ker’s Winghouse, a Florida restaurant chain where both the decor and the servers’ wardrobe (or lack thereof) seemed to mimic that of Hooters. Ker’s features the Winghouse Girls in its 17 restaurants, all but one of which is in Florida. Last December, in an opinion that demonstrated keen insight into the male psyche, Florida federal Judge Anne Conway found that the Hooters Girl is “the very essence of Hooters’ business” and that her role is to “provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies.” Therefore, she ruled that the Hooters Girl persona is “primarily functional” and so is not entitled to trade-dress protection under federal law. In ruling against Hooters, the judge noted that in an earlier, unrelated employment discrimination case, the chain told government agencies that the Hooters Girl’s sexual persona not only is used to market the restaurants but also is a key function of her job as a server. The U.S. Supreme Court has held that trade-dress law only protects a restaurant’s distinctive dress so long as it doesn’t serve an important or necessary function. In addition to dismissing Hooters’ claims, Conway also awarded Ker’s Winghouse $1.2 million on a counterclaim for breach of a settlement agreement purportedly entered into by the wing chains before the litigation. That award is also on appeal. “What I think we proved at trial . . . was that Hooters was not able to handle the competition,” says G. Donovan Conwell Jr., a lawyer with Fowler White Boggs Banker in Tampa, which represents Ker’s Winghouse. Or perhaps they proved that, when it comes to using pretty girls to sell hot wings, form follows function.
Alyson Palmer is a reporter for the Fulton County Daily Report , an ALM publication.

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