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'Breastaurant' Wars: More Trademark Lessons

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By Tanya Roth, Esq. on December 07, 2010 8:49 AM

It's a concept that is as old as the hills: use pretty girls and their natural (or not-so-natural) assets to entice customers.

Move over Hooters, Twin Peaks and Northern Exposure need a bit of room to settle their differences.

A Texas-based restaurant sued a Arkansas-based restaurant over trademark infringement for its "food with a view of some substantial mountains" theme. Calling girls in tight clothing scenic is not new. But approximating another businesses' logo and theme may not be an original-enough idea, either.

Twin Peaks, whose logo includes snow-capped "mountains" and the slogan "Eats - Drinks - Scenic Views," claims to be the originator of a particular scantily-clad waitress restaurant theme, according to the Dallas Observer.

Twin Peaks alleges that Northern Exposure (slogan: Great Steaks, Cold Drinks & Free Scenic Views) owner Kevin Laughlin approached the restaurant about a franchising deal for a Branson, Missouri location. Twin Peaks claims it assisted Laughlin by suggesting Fayetteville, Arkansas as a better location instead.

Twin Peaks claims it suggested Fayetteville's for its proximity to party-ready college kids and an ever-fresh supply of chicken from the nearby corporate headquarters of Tyson Foods and Wal-Mart. In addition, they gave information about the Twin Peaks restaurant and suggestions for re-modeling the chosen property in Fayetteville. According to the Observer, Laughlin took the suggestions and went off to founded the infringing Northern Exposure instead.

The suit claims the similarity of the themes, logos, and slogans will surely confuse the customers as to the origin of the goods, services and recreational viewing served up nightly, states the compliant posted by the Observer. Twin Peaks also claims an infringement of trade dress. Trade dress can include distinctive use of color, shapes and even décor that define a product or service, but is not limited to the clothes, or lack thereof, worn by the servers.

Some believe that the trade dress argument will die (as did a 2004 suit to protect the Hooters uniforms) because the northern lodge idea for a restaurant is just too generic and the uniforms themselves are functional, and therefore won't be protected. The trade dress argument may or may not win, but the very similar trademarked logo and slogan will be a close call.

Lesson learned? Climb your own mountains. Copying not just an idea/theme for a business but also the slogan and logo will likely earn you a trademark infringement suit.

If you wish to keep abreast of this story, check back with this blog for further developments.

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