From the WSJ Opinion Archives
SCENE & HEARD
Stop or Owl Sue
Hooters goes to court to protect its intellectual property.
After years of fending off banner-waving NOW protesters in Midwestern malls, Hooters of America finds itself in its most compromising position yet: It has inspired imitators. The purveyor of Barbies and bar food is getting a black eye from a most unlikely source--a Hooters wannabe.
So it has done what any red-blooded American corporation would. It filed a lawsuit for "trade dress infringement."
The complaint, filed in an Orlando federal court, alleges that itsy T-shirted waitresses at Ker's WingHouse present "unfair competition" to Hooters girls, known for their inspiring presentation of otherwise ordinary menu items. Ker's filed for dismissal this week, maintaining that sex appeal predates Hooters.
On the merits, the Hooters position seems a bit of a stretch. Trademark infringement suits have to prove that the business in question has actually suffered harm to its image--that the offending business's use of the trademark is "likely to cause confusion or deceive." People for the Ethical Treatment of Animals, for example, successfully sued a man who registered the domain name peta.org for his Web site People Eating Tasty Animals. In a similar vein, Puma has been going after a pornographic spoof of one of its racy ads, worrying that the brand itself could be damaged by association.
But other recent cases have been less successful: Victoria's Secret lost a Supreme Court case in March that it brought against Victor's Secret, an independent purveyor of sex toys. The court noted that "mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner."
Ker's WingHouse, for it's part, hasn't borrowed the Hooters logo or name, just its bra size--something difficult to trademark in the vicinity of Miami Beach. The interloper isn't exactly new either; the two restaurants have been serving up "big portions" down the road from each other for almost 10 years.
But while Ker's has seen growing success, the real reason for the lawsuit is likely the desire by Hooters to bolster its brand name in light of new ventures. Aside from opening franchises in places like Singapore, the famous orange owl was recently painted on the tails of some 737s and Hooters Air began flights between Newark, N.J., and Myrtle Beach, S.C.
It's all a far cry from Hooters' typical seat on the defendants' bench. The restaurant long served as a proxy for women's groups for everything offensive about the patriarchal society (a k a the "rape culture"). Over the years, the company has been taken to task for sexual harassment by managers, peepholes in dressing rooms, and even a suit brought by a waitress who said she was tricked into thinking a contest would win her a Toyota, when what she got was a toy Yoda.
In some quarters, to be sure, the Hooters name still makes people froth under their green burkas. When Hootie Johnson announced that the Masters Tournament in Golf wouldn't accept sponsors, Martha Burk, head of the National Council of Women's Organizations, hissed that she couldn't imagine him "having sponsors unless he wants Hooters for a sponsor. . . . Hooters backing Hootie. I think that's appropriate."
But it's a far cry from the heady mid-1990s when National Organization for Women leaders got arrested at Hooters protests and the Equal Employment Opportunity Commission investigated the chain for not hiring men. (An Illinois Court ruled in a suit brought by hopeful waiters that being an unusually endowed waitress was "a bona fide occupational qualification" for a restaurant "in the business of providing vicarious sexual recreation.")
The suit may be dumb. But that Hooters now has a competitor successful enough to warrant suing is at least an acknowledgment that many people know there are more serious threats to women than suggestive outfits as a marketing ploy.
Ms. Levey is an assistant features editor of The Wall Street Journal's editorial page. Her column appears on alternate Thursdays.
