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'Breastaurant' Trademarked by Bikinis Eatery

Watch out, Hooters. Texas restaurant chain Bikinis Sports Bar & Grill can now officially call itself "America's ONLY Breastaurant®." Bikinis founder and CEO Doug Guller announced in a recent press release that "Breastaurant® is now a Registered Trademark through the United States Patent and Trademark Office of the Department of Commerce." It's a signal of a growing industry -- and it's not the first time that the restaurants formerly known as breastaurants have made news over intellectual property-related issues.

The breastaurant term has been used to describe establishments that offer food, drink and, most importantly, waitresses in smaller-than-average uniforms. Among them: the Tilted Kilt Pub & Eatery, which has a Celtic theme and waitresses called Tilted Kilt Girls® who sport tartan bra-tops and tiny kilts. The Twin Peaks chain -- slogan: "Eats. Drinks. Scenic Views" -- offers a mountain lodge atmosphere with female wait staff dressed in what might be best described as "sexy lumberjack" attire, and which promises patrons that, "Twin Peaks is about you, because YOU'RE THE MAN!" New York-based Canz has a roadhouse vibe, with waitresses in tight black tank tops and knee socks. At Bikinis, the servers wear cut-off shorts and -- well, you've guessed it already. And, of course, there's Hooters.

Bikinis' website explains Guller's moment of inspiration for his restaurant concept, which occurred while he was sitting in a bar during a vacation to Australia in 2001. After being approached by an attractive server offering beer, Guller found that "Life suddenly made sense to him. He thought to himself, 'This is a nearly perfect combination: relaxing, drinking, sports, girls, service ... plus great food.'" The formula appears to be working just fine for Bikinis and its competitors. An ABC News story from 2012 reported that the restaurant category has grown to a billion-dollar industry that is proving virtually recession-proof.

As profits have grown, so has intellectual property litigation. Hooters brought a trade secret case in 2011, after a former Hooters vice president left to help develop Twin Peaks, allegedly taking "sensitive business information" and documents with him. The parties ultimately settled. Twin Peaks itself initiated a trade dress suit in 2010 against Arkansas-based Grand Tetons LLC, which was opening a similar restaurant called Northern Exposure. As Fayetteville, Ark.'s ABC 4029TV reported at the time, "The lawsuit does not mention Hooters, the restaurant known for its bar food and scantily clad waitresses, nor does it mention the TV shows with which Twin Peaks and Northern Exposure share a name."

Back in 2005, Hooters failed in its own effort to bring a trade dress suit against Florida restaurant chain WingHouse, with claims predominantly based on its concept of the "iconic Hooters Girl." The case made it to the Eleventh Circuit, where a panel affirmed a district court decision that provides an entertaining read, given its legal analysis of skimpy waitress uniforms. The district court said that Hooters admitted in its suit that "the Hooters Girl's predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies." This "essential functionality" disqualifies the Hooters Girl from trade dress protection, the court held.

The breastaurant wars are likely to continue, and it remains to be seen whether Bikinis will be compelled to enforce its new trademark. In the meantime, founder Guller has been busy with other ventures. As Legal Blog Watch reported last July, Guller bought the abandoned Texas town of Bankersmith on Craigslist and renamed it Bikinis, Texas. Actualy, there's some disagreement about whether the purchased land ever really qualified as a "town" and about exactly how the Craigslist deal went down, but, all that aside, Guller has plans that include a potential reality show. "We hope the television show introduces the Bikinis brand to a much wider audience," he told the Austin Business Journal. "We don't think we've even scratched the surface yet."

Posted by Laurel Newby on April 10, 2013 at 04:55 PM | Permalink | Comments (8)

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