Posts tagged as:

trade dress

According to its claim, the packaging of Dove brand chocolate and peanut butter candy “is too similar to that used for such products in Hershey’s Reese’s line,” and relies overmuch on the colors brown, orange and yellow, presumably nonobvious choices for a chocolate-peanut confection. [Matt Miller, Harrisburg Patriot-News]

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Trade undress, cont’d: two restaurant companies by the names of Twin Peaks and Grand Tetons (doing business as “Northern Exposure”) are now sparring in court over whether the latter improperly copied the former’s Hooters-meets-wilderness-lodge eatery concept [Siouxsie Law, Dallas Observer] In 2004, Hooters itself sued a rival establishment named WingHouse which it claimed had improperly copied distinctive elements such as its servers’ provocative manner of dressing.

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November 24 roundup

by Walter Olson on November 24, 2009

  • “California’s Largest Cities and Counties Spent More Than $500 Million in Litigation Costs in Two Years” [CACALA]
  • Violence Policy Center blames handgun carry permits for offenses that include … strangulation? [Sullum]
  • New allegations in New York school district lawyers pension scandal [Newsday]
  • Plush doll twade dwess dispute made Tonstant Weader fwow up [Schwimmer]
  • “School Hit With a Lawsuit over Dodgeball Game Injury” [FindLaw "Injured", Bronx]
  • Too bad judges are so reluctant to sanction lawyers for filing papers that contain false assertions [Coleman]
  • Hundreds of asylum clients could be deported after law firm founders are convicted of fraud [ABA Journal]
  • Congratulations to superlative juryblogger Anne Reed, picked to run Wisconsin Humane Society [Deliberations; also Turkewitz]

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For those who care (Mike Riggs, Reason “Hit and Run”, Jul. 23, cybersquatting suit filed by the celebrity gossip blogger; The Smoking Gun, Jul. 15, Popehat, Jul. 16, suit filed against Hilton by woman whose nasty email he printed, causing her to lose her job since it was traceable to her work account).

April 17 roundup

by Walter Olson on April 17, 2008

  • “I did not know what kind of monster we were dealing with”: dramatic testimony from Judge Lackey on Scruggs corruption [Folo; and repercussions too]
  • New at Point of Law: Pork-barreling Albany lawmakers shell out for just what NY needs, three more law schools; Sarbanes-Oxley unconstitutional? Ted goes after JAMA on Vioxx; sadly, appeals court overturns Santa Clara opinion that nailed ethical problems with govt.-paid contingency fee; legal aid lawyers, to subprime borrowers’ rescue? and much more;
  • Cadbury claim: we own the color purple as it relates to chocolate [Coleman]
  • A world gone mad: Innocence Project directors include… Janet Reno? [Bernstein @ Volokh]
  • Not unrelatedly: Can a California prosecutor be held liable for wrongful murder conviction of man freed after 24 years? [Van de Kamp versus Goldstein, L.A. Times via Greenfield]
  • With all his lawyer chums from Milberg-witness days, you’d think Ben Stein could have saved the makers of his creationist movie from stumbling into textbook IP infringements [Myers, again, WSJ law blog]
  • Groggy from dental anesthesia, plus a half a glass to drink: then came the three felony DUI counts [Phoenix New Times, Balko via Reynolds]
  • Shell says boaters had years of notice that mandated ethanol in fuel was incompatible with fiberglass marine gas tanks, which hasn’t stopped the filing of a class action [L.A. Times via ABA Journal]
  • Terrorism asymmetry: “They say ‘Allahu Akbar!’ we say ‘Imagine the liability!’” [McCarthy/Lopez, NRO]
  • Deborah Jeane Palfrey convicted [WaPo; earlier]
  • David Neiwert truly born yesterday if he thinks Kevin Phillips is noteworthy for his record of being right [Firedoglake; some correctives]

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First the giant retail chain sent a nastygram to an improvisational troupe that staged an unannounced performance at one of its stores and then sold parody T-shirts that imitated the retailer’s graphics. Then it sent a nastygram to a blog that had reported on the incident. Then, as p.r. disaster loomed, it apologized for sending the nastygram — the second one, at least, the one to the blogger. (Laughing Squid, Dec. 12)(via Turkewitz).

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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Hooters sues its competition

by Walter Olson on November 23, 2004

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.