Susan at Counterfeit Chic discusses a trade dress dispute between Hooters and Winghouse.
According to the District Court, 347 F. Supp. 2d 1256 (M.D. Fla. 2004), the claim fails as a matter of law because the Hooters Girl in uniform is primarily functional. And we're not talking about serving food and beverages. The judge found that "the Hooters Girl's predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies. She is the very essence of Hooters' business." Must be the orange nylon.
The Hon. Anne C. Conway further noted that while servers in both establishments wear tank tops and shorts, "Hooters cannot monopolize this generic theme any more than an upscale steak restaurant featuring tuxedo-clad servers could preclude competitors from using the same or similar uniform."
Would this be design-packaging under Two Pesos? I love Trademark Blog's title too: confusing similar breasts.