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Judges on the 11th U.S. Circuit Court of Appeals will take a close look at the short-shorts and tight tank tops of the “Hooters Girls” to determine whether the restaurant servers’ scant outfits deserve trade dress protection. Last December, a U.S. District Court judge in Orlando, Fla., ruled that the “Hooters Girl” persona is “primarily functional” and therefore is not entitled to trade dress protection. HI Ltd. Partnership v. Winghouse of Florida, Inc., No. 6:03-cv-116 (M.D. Fla. 2004). U.S. District Judge Anne C. Conway found that the “Hooters Girl” was “the very essence of Hooters’ business,” whose “predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies.” Hooters of America Inc. had brought claims of trade dress infringement and dilution and unfair competition against Ker’s Winghouse, a Florida restaurant chain in which the decor and the waitstaff’s wardrobe seemed too familiar to Hooters executives. Ker’s Winghouse restaurants — named after founder, president and former Dallas Cowboys lineman Crawford Ker — feature the “Winghouse Girls.” According to their respective Web sites, there are over 375 Hooters restaurants in 46 states and several foreign countries, whereas there are 17 Ker’s Winghouse restaurants, all in Florida except for one in Texas. Adding to Hooters’ woes, the District Court jury awarded Winghouse $1.2 million on a counterclaim for breach of a settlement agreement purportedly entered into prior to the litigation. Winghouse alleged that Hooters promised not to sue Winghouse if Winghouse made certain changes, such as altering the color of its waitstaff’s uniforms. Winghouse made those changes — and then Hooters sued it anyway. Hooters argues on appeal that the evidence at trial showed that the two companies did not enter into a final and binding agreement, and that Winghouse’s breach of contract claim was barred by its failure to present written evidence of the alleged contract. Federal law lets a person or business sue a competitor that deceptively uses a word, name, symbol or device that causes confusion with the plaintiff’s business. A U.S. Supreme Court opinion, Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), set the standard for trade dress infringement in restaurants, holding that federal law protects inherently distinctive, nonfunctional trade dress from infringement — even where the holder of the trade dress cannot show that the feature allegedly infringed has come to be uniquely associated with a specific source in the mind of the public. However, the 11th Circuit has offered little guidance in this area, according to Hooters counsel Steven G. Hill of Hill Kertscher & Wharton in Atlanta. Conway’s opinion reported that counsel for Hooters, in defining its restaurant trade dress, included the Hooters Girl uniform, aspects of the woodwork of the restaurant interior and furniture, characteristics of the table-top setup and menus, specific decorations and pictures on the walls and “beachy” music. The District Court set aside the aspects of Hooters’ interior d�cor as too typical of other Florida casual restaurants to provide a basis for an infringement claim — and focused instead on the Hooters server and her uniform. POM-POMS WOULD BE FINE The Winghouse Girls wear black tank tops and black running shorts, while the Hooters Girls sport white tops and orange shorts. Such similarities don’t constitute “a knockoff,” Conway reasoned. The judge recalled that earlier, in an unrelated employment discrimination case, Hooters told government agencies that the Hooters Girl’s sexual persona is used not only to market the restaurants, but is also a key function of her job as a server. According to Winghouse’s appellate brief, Hooters told the government agencies that “the Hooters’ Girls’ ‘primary function’ [is] ‘to fulfill customers’ expectations and desire to see, be entertained by and interact with a sexy, barely clothed Hooters girl,’ i.e. ‘the dominant purpose of their jobs is to titillate and entice.’” In one of its appellate briefs, Hooters took issue with the conclusion that the uniform has a function within the meaning of trade dress law, arguing that its letters to the U.S. Equal Employment Opportunity Commission contained no discussion “about whether the uniform style made the food taste better or made the beer cheaper.” Hooters argued that there are numerous alternative ways of using scantily clad women to sell food, other than having waitresses wear tight tank tops and short nylon running shorts. “We didn’t have any problem with him putting girls in cheerleader outfits with the pom-poms,” said Hill, alluding to Ker’s football past. G. Donovan Conwell Jr. of Fowler White Boggs Banker in Tampa represents Winghouse. He said the case is a matter of competition, not trade dress infringement. “What I think we proved at trial … was that Hooters was not able to handle the competition,” he said. “Winghouse is certainly not the only restaurant that has knocked us off,” said Hill, adding that Hooters considered Winghouse a worthy target because it was not a “mom-and-pop” restaurant but a chain with plans to expand. Judges Joel F. Dubina and Stanley Marcus of the 11th Circuit and Judge Richard W. Goldberg of the U.S. Court of International Trade will hear the appeal on Jan. 13.

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