Chronicling the high cost of our legal system
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In a confidential settlement after a mediation, Nikolai Grushevski has resolved his complaint that he was turned down for a waiter job at a Corpus Christi location of the “breastaurant” chain because he is not a she. [On Point News, earlier]
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And so Nicolai Grushevski of Corpus Christi, Texas is off to court with a class action suit against restaurant chain Hooters of America, known for its buxom serving staff (complaint, PDF, courtesy CourthouseNews.com). Legal pressure on the winks-and-wings purveyor to hire male waitstaff is nothing new: see this post and this one on the long crusade to that effect by the federal Equal Employment Opportunity Commission.
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Hooters, dissatisfied with a district court ruling (Dec. 7, 2004) that it could not use the mechanism of trademark law to preclude competing restaurants from having tank-top-clad waitresses serve mediocre chicken wings, has appealed, and the Eleventh Circuit will hear argument on January 13; the Fulton Daily County Report has all the detail you could ever want.
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Hooters of America had sued WingHouse for copying its concept (Nov. 23). While restaurant chains are not permitted to copy the distinctive “trade dress” of competitors (Two Pesos v. Taco Cabana, 505 U.S. 763 (1992)), the point is to avoid confusion, and Hooters’ claim was mostly based on their attempt to prevent anyone else from selling chicken wings with a scantily-clad waitress. Judge Ann Conway “found that ‘no reasonable juror’ could confuse WingHouse girls, who are dressed in all-black shorts and tops, with Hooters girls, who wear orange shorts and white tops” and threw out Hooters’ suit. Because Hooters had previously agreed to settle such intellectual property disputes with WingHouse in 1997, WingHouse was awarded $1.2 million in a breach-of-contract counterclaim. (Michael Sasso, “Hooters’ Look Isn’t Exclusive, Judge Rules”, Tampa Tribune, Dec. 3; Richard Wilner, “Wing Man Bests Hooters”, New York Post, Dec. 4; “Hooters Can’t Stop Restaurant From Copying Waitress Uniforms”, Bloomberg News, Dec. 3).
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Trial began last week in a lawsuit filed by Hooters of America against a rival “breastaurant” operator named WingHouse, which also relies on curvy waitresses to sell sports-bar food and drink to a clientele of young men. Hooters charges infringement of “trade dress” (undress?) and other sins, while WingHouse contends that the older chain is using the legal system to suppress competition. (Henry Pierson Curtis, “Hooters suit aims to clip upstart competitor’s wings”, South Florida Sun-Sentinel, Nov. 18; Kris Hundley, “Hooters defends wings-and-winks turf”, St. Petersburg Times, Nov. 18; “Hooters competitor in court, accused of stealing ideas”, AP/Daytona Beach News-Journal, Nov. 19)(via Reason “Hit and Run”). For more Hooters litigation, see Mar. 27, 2001; Mar. 24-26, 2000.
Point of Law Volokh