– Draeke Weseman, Weseman Law Office, PLLC
Now the dilemma…what to name the place. Simple. What else brings a gleam to men’s eyes everywhere besides beer, chicken wings and an occasional winning football season? Hence the name Hooters. Supposedly they were into owls. Strange.
This NFL season, civil rights advocates continue to make significant progress exposing the racism inherent in the Washington Redskins team name. DuetsBlog has covered the topic on numerous occasions, including here, here, and here. In June, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office finally ruled that Washington’s trademark registrations must be cancelled because the term “Redskins” is disparaging to Native Americans.
To my knowledge, the Trademark Trial and Appeal Board has not yet been asked to review a registered mark for cancellation on the grounds that it is inherently sexist and, therefore, disparaging to women. But given the success in the Washington case, perhaps some registrations are due for a challenge. In my opinion, one candidate for cancellation is the registration afforded to Hooters, the mainstream restaurant chain that puts women’s breasts on display to sell chicken wings.
Let’s begin with the following tongue-in-cheek statement from the Hooters’ website:
Hooters is proud to have created a globally recognized icon. Obviously we’re talking about the owl in our logo.
We all know that Hooters is a euphemism for breasts, and at first glance, this humorous play on words seems harmless enough. Hooters whimsically calls its brand personality “[d]elightfully tacky, yet unrefined.” Nothing wrong with a good joke, right? Well, research suggests otherwise:
Sexist humor is not simply benign amusement. It can affect men’s perceptions of their immediate social surroundings and allow them to feel comfortable with behavioral expressions of sexism without the fear of disapproval of their peers.
With that in mind, should we laugh at the following excerpt from Hooters’ company history?
While Ed arranged the photo shoot for Hooters’ first billboard, Gil indoctrinated Lynne [The bikini-contest-winning first Hooters Girl] by making her clean out the refrigerator and scrub the floors.
Hooters takes it one step further in its employee handbook, which requires employees to acknowledge that they “do not find [their] job duties, uniform requirements, or work environment to be offensive, intimidating, hostile or unwelcome” and that “the Hooters concept is based on female sex appeal and the work environment is one in which joking and innuendo based on female sex appeal is commonplace.”
What happens to the joke when we consider that the disparagement of women through their sexual objectification in commercial advertising may have serious consequences, including an increase in the acceptance of sexual aggression against women and rape myth acceptance (the belief that “no” really means “yes”)?
Consider the relationship between Hooters and football, and all of the domestic violence issues the NFL is facing after a video showed running back Ray Rice punching his girlfriend unconscious on an elevator. With that in mind, can we stomach social media posts like this one? (I guess Hooters missed the part of Ben Roethlisberger’s career where, on two separate occasions, he was accused of sexual assault?):
Of course, the “sex sells” brand proposition has been a maxim of the advertising industry for a long time, and sexual objectification – where a person is viewed primarily in terms of sexual appeal or as a source of sexual gratification – occurs regularly in television commercials featuring women. Such advertising, like in this Hooters commercial, encourages a disparaging cultural attitude toward women by reducing the woman’s value to her ability to be sexually arousing – what she is saying isn’t nearly as important as how she is saying it and what she looks like. What’s more, when seen through a lens sensitive to sexism, Hooter’s charitable causes look like nothing more than an apparent exploitation of breast cancer awareness and military service to sell calendars:
Thus, the truth as I see it is that when we look past the surface-level Hooters pun and really look at the Hooters brand, we see a brand that at its core is committed to and perpetuates a sexist culture that objectifies women for commercial gain. This is disparaging to women, whether we as a society find it amusing or not.
Following the Washington Redskins case, it’s difficult to see how the United States Patent and Trademark Office can allow sexist trademarks like Hooters to continue to receive protection as registered trademarks when the law clearly provides an absolute bar against scandalous and disparaging marks.
Under Section 2(a) of the Lanham Act, a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead” is ineligible for trademark registration. The word “scandalous” in the statute includes matter that is vulgar, lacking in taste, indelicate, or morally crude. Generally, the scandalous nature of a mark must be perceived by a substantial portion of the general public in the context of contemporary attitudes and the relevant marketplace. Humor is not a defense, nor does it matter if the mark has an alternative meaning.
Disparagement, on the other hand, looks at the issue not from the view of the general public, but from the view of the targeted group. The test is a two-part inquiry: (1) what is the meaning of the term in question as it appears in the mark and as the mark is used in connection with the identified goods and services?, and (2) does the meaning of the mark disparage the target group, as determined by the views of a substantial composite of that group? That substantial composite need not be a majority.
While we wait and see if marks like Hooters will ever be challenged under either of these tests, other countries are taking the lead on this issue in different ways. Norway and Denmark both ban sexual objectification in advertising, while tolerating nudity. According to the head of one leading ad agency “Naked people are wonderful, of course, but they have to be relevant to the product. You could have a naked person advertising shower gel or a cream, but not a woman in a bikini draped across a car.” Is it a coincidence that the countries considering this issue also have some of the lowest gender pay gaps and best parental leave programs in the world?
Should the USPTO continue to allow trademarks like Hooters to be registered? Or by doing so, does the USPTO perpetuate sexism in branding?
What about marks like the one below for Camel Towing? (The picture was taken in a local parking lot.) Should the USPTO allow it to be registered, if the company behind the mark ever applies?