The quote of the day comes from female U.S. District Court Judge Anne C. Conway who declares, "The Hooters Girl is not entitled to trade dress protection because the evidence establishes to a legal certainty that the Hooters Girl is primarily functional." (hat-tip: How Appealing)
Judge Conway does away with yet another attempt to stifle free market competition by trying to wrap coercive monopolies in the smothering flag of intellectual property.
Another money quote:
"Hooters simply cannot prevent a competitor from using a server outfit as different as a black tank top and black running shorts. If Hooters could stop Winghouse from using that particular color and combination, then it could prevent any other competitor from using any color combination of tank top and running shorts. This would be an impermissible burden on competition. Moreover, a server uniform consisting of a tank top t-shirt and nylon running shorts is fairly common to sports bar and grills. 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."
Obligatory pics here (pic hat-tip: Trademark Blog)
I continue to maintain that the modern-day practice of intellectual property law by the legal establishment
has devolved into a form of outsourced socialism if you will - a system that encourages the stifling of legitimate free market competition which has been created and nurtured by governmental institutions for the benefit of its private benefactors looking to secure monopolies on their given industries. Let this case be Exhibit 1 for that proposition.
Winghouse of Florida has prevailed - but how much money did they have to spend in the legal system fighting for the right to merely exist?
I say, "Long live free market hot wings and waitresses with extra tight outfits!"
UPDATE: I have been told that some of you still need to see more "evidence" before you decide the pressing issue of "trade dress" protections for Hooter's-style waitresses.
Who am I to deny readers such important evidence? You know my position, but feel free to judge for yourselves...
Posted by Justin Levine at December 13, 2004 03:13 PM | TrackBack