What’s the difference between a waitress slinging chicken wings and an escort with an “exclusive” clientele, flexible hours and “the best pay scale in the business”?
A lot, says Hooters of America, the Georgia-based restaurant chain that has sued a local escort service over a help-wanted posting on Craigslist.
In November, a photograph showing five preening women wearing tight orange shorts and Hooters Ecuador t-shirts appeared under the heading “NOW HIRING HOOTERS GIRLS $100 AN HOUR,” according to a lawsuit filed in federal court in Miami in December.
The ad was posted by Nikki Swafford, owner of Nikki’s Escort Service, a Pembroke Pines business that, according to its web site, has provided “reliable male and female escorts throughout the Miami area for nearly 20 years” and whose rates cover only companionship. “Anything else that occurs,” it proclaims, “is strictly between consenting adults.”
And that, the restaurant says, hardly personifies a Hooters girl.
“Hooters devotes substantial effort and resources to promoting the Hooters Girls as beautiful, wholesome, fun-loving, all-American girls,” an attorney for the chain wrote in a cease-and-desist letter to Swafford. “Your use of the term ‘Hooters Girls’ in conjunction with the picture of the Hooters Girls in their official uniforms strongly implies an association between Hooters and your company.”
Swafford’s response, according to the lawsuit: “what are you going to do sue me. lol well get in line baby cuz i aint got sh--. lol .”
So they did. But what might appear as a clear tarnishing of its brand may not be so straightforward, say attorneys who have taken the dispute to the Internet where a number have posted articles examining the issue.
“I saw the case and I thought, ‘Why in the world would Hooters be suing an escort service?’ Obviously it’s a more interesting topic than your typical case,” said Paul Tanck, a New York-based intellectual property lawyer who co-wrote an article titled “A Hooters Girl By Any Other Name” ( http://www.tmtperspectives.com/2013/12/27/a-hooters-girl-by-any-other-name/).
In their lawsuit, Hooters argued that Swafford used its logo and recognizable outfits to solicit girls to work as escorts. The use not only leads to confusion, but damages the brand and reputation of Hooters, said the company’s Atlanta-based attorney, Steven G. Hill.
Hill, who has been protecting the restaurant’s brand for more than a decade, initially tried to end the matter with a letter.
“Typically we do not use litigation as a means of dealing with these concerns and instead we work with the domain providing the service,” he said. But when Craigslist failed to respond to a letter, and after Swafford’s profane response to a colleague, Hooters sued.
And that seemed surprising to Tanck.
“I understand they want to protect their name, but that seems to be over-reaching,” he said. “She’s not competing with Hooters. She’s not trying to do anything other than hire Hooters girls and I think that properly falls within nominative fair use.”
Where Swafford stepped over the line, Tanck said, was in using the Hooters logo.
“Using the picture goes beyond minimum use,” he said. “If you could imagine I’m looking to hire Goldman Sachs attorneys, I could put out an ad saying that. But then if I put the Goldman Sachs logo on it, then all of a sudden I’m using their logo to draw attention.”
Hill added that there’s a big difference between, for example, a newspaper mentioning brand name in a news article, on the one hand, and implying an endorsement or affiliation on the other. A federal appeals court in California made that point in 1991, when it said USA Today and a supermarket tabloid did not violate the rights of the boy band New Kids on the Block when the papers published polls asking readers to opine on their favorite band member.
“That’s fundamentally different than taking the New Kids on the Block and incorporating it into an advertisement where you also include the New Kids on the Block logo and pictures,” Hill said. “Now it’s starting to look like you’re using the appearances of the owners of intellectual property as if they’re endorsing your activity, which in this case, for reasons I’m sure you can understand, we most definitely are not.”
Furthermore, when Hooters does consent to another business using its brand, it involves serious negotiation and possibly money, Hill explained.
“When Big Daddy the movie wanted to show the inside of a Hooters restaurant in conjunction with their filming, they paid a significant licensing fee for the privilege of being able to reproduce the inside of a Hooters restaurant.”
While Hooters has never had to battle an escort service, he said, it did spend about three years fighting a variety of online pornography sites co-opting its name and brand between 2001 and 2004.
“We were able through aggressive negotiation to bring an end to that problem,” he said, adding that the number of cases involving “illicit sex” had numbered only a few. “You can imagine we’re not interested in it becoming a problem and having other people interested in going into that type of service going online and copying that model.”
On Thursday, three days after Swafford missed a deadline to respond to the court case, Hill asked a judge to find her in default. If she is found in default, Hill may demand she pay attorneys fess and damages.
She did not respond to an email sent to her Craigslist address, and no one answered the phone number listed on her web site.
But Swafford has changed tactics. After retitling her Craigslist posting from Hooters to Kooters, Swafford changed it yet again in January. This time, the picture accompanying her request for “Attractive Females Who Need Cash!” shows a half dozen girls clad in skimpy black t-shirts, fishnet stockings and chaps. In the new ad, the t-shirts say Shooters.
No word yet on whether the Fort Lauderdale Shooters restaurant, which opened more than three decades ago on the Intracoastal, went into bankruptcy in 2012 and reopened this month with a new classy makeover, feels tarnished.