Okay, mind association-game time. If I say “Twin Peaks,” what immediately leaps to mind? Poor, murdered Laura Palmer, earnest Special Agent Dale Cooper, lumberjacks, log ladies and one-armed men, right? Oh, and Hooters, of course.
That’s right, I said Hooters, in all its scantily-clad-waitress-hiring, chicken-wing-serving glory. You see, Hooters of America has got its lingerie all in a bunch over a rival chain of “Twin Peaks” restaurants. (Their slogan? “Eats, Drinks, Scenic Views.” You can’t make this stuff up, people; not even David Lynch is that good.) The Twin Peaks business model, apparently, involves scantily-clad waitresses serving chicken wings in a mountain-themed restaurant. Hooters claims that when a former executive left Hooterville to join Twin Peaks-operator La Cima Restaurants (yep, as in “mountain top”), he took with him a stash of highly confidential, sensitive Hooters business data that La Cima then used to create the Twin Peaks restaurant model. A nasty B-cup battle is now brewing (ok, maybe a D cup, but I’m all about the alliteration) in Georgia federal court over this purported trade secret violation.
Call me crazy, but for something to be a trade secret, doesn’t it need to be, um, secret? Seriously, is there anyone over 18 on the planet who doesn’t know the “secret” to Hooters’ success? We’re not talking about the formula to Coke here. Does “boobs and beer” qualify as a highly classified trade secret these days? (Victoria may beg to differ, but what does she know?)
As if one Breastaurant War weren’t enough, Twin Peaks, not to be outdone, has chosen to play tit-for-tat (sorry, I couldn’t resist), and is suing entrepreneur Kevin Laughlin and his company named — wait for it — Grand Tetons LLC — for trademark and trade dress infringement, over yet another competing restaurant, “Northern Exposure.” The suit contends that Laughlin applied to open a Twin Peaks franchise and met with Twin Peaks executives, obtaining valuable Twin Peaks business information (which, we now know, may actually be valuable Hooters information). But then Laughlin turned them down, instead opening Northern Exposure, a restaurant whose slogan may sound familiar: “Great Steaks, Cold Drinks and Free Scenic Views.” Twin Peaks wasn’t amused, and claims that Laughlin intentionally set about to knock off the Twin Peaks concept — namely, a wilderness lodge-themed, scantily-clad-waitress-hiring, chicken-wing-serving, double-D-entendre-laden, TV show-named restaurant.
As our regular readers know, trade dress is a branch of trademark law that seeks to protect the distinctive design, look and feel of a particular product. To prevail on a trade dress infringement claim, the plaintiff must prove that the trade dress is (i) non-functional, and (ii) serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; plaintiff must also convince the judge or jury that the defendant’s product is confusingly similar.
At least one restaurant has been successful in arguing that its interior and exterior décor — a festive eating atmosphere decorated with Southwestern-style artifacts, bright colors, paintings and murals — was distinctive enough to deserve trade dress protection. But query whether a lodge-style restaurant is too generic to be protected under a trade dress theory (see, basically, any ski resort). And more importantly, isn’t the main feature of Twin Peaks’ purported trade dress actually the trade undress of its provocatively-attired wait-staff? Is it possible for a single restaurant to have exclusive rights to waitresses wearing short shorts and halter tops? [Ed. Note: Please let the answer be no!]
For the answer to this question, let’s circle back to where we began — with Hooters. Because Hooters already tried this argument, and it lost. [Ed. Note: Hooray!] Back in 2004, Hooters sued the Winghouse restaurants in Florida (I’ll spare you the Owl vs. Chicken jokes), arguing that its “Hooters Girl” uniform of a tank top and short shorts, and its “beach shack” interior décor were protected trade dress. The 11th Circuit disagreed, finding not only that the competing décor and design elements were sufficiently different, but also that the “Hooters Girl” look was predominantly functional. What function, you ask? In the words of the (otherwise respectable, I’m sure) district court judge in the case, “to titillate, entice, and arouse male customers’ fantasies,” of course. I’m not sure I buy the functionality argument, but I still think its unlikely Twin Peaks will prevail, just as I’m sure any number of fancy schmancy French restaurants featuring tuxedo-clad servers would fail if they tried to prevent a competitor from putting out a staff of mustachioed, accented penguins.
How the Hooters v. Twin Peaks and Twin Peaks v. Grand Tetons lawsuits will play out remains to be seen. We’ll certainly keep you abreast of the situation. Instead of continuing to clutter the court system with these cases, however, couldn’t the plaintiffs try their hand in an alternate forum — mud wrestling? Just a thought.