In court, the chain says Largo-based WingHouse is getting a little too close to its business model.
By KRIS HUNDLEY
Published November 18, 2004
[Times file photo]
Scantily clad wait staff, chicken wings and wood paneling. Hooters claims these as its hallmarks.
[Times photo: Cherie Diez]
St. Petersburg WingHouse waiter Jenny Cline has worked at Hooters and says there are differences.
ORLANDO - When a customer walks into a WingHouse restaurant, does he think he's in a Hooters?
And if so, is it the wood-paneled dining room, the Christmas lights or the calendar-girl waitresses in the tank tops that causes the confusion? Or all of the above?
A trial began in a federal court on Wednesday to resolve that pressing issue.
Ten years after the first Wing-House opened in Largo, Hooters, more than twice its age and nearly 30 times its size, is coming after its rival for stealing Hooters' special ambience.
Hooters, founded in Clearwater but now based in Atlanta, claims that WingHouse unfairly copied certain distinctive elements of the Hooters experience, damaging Hooters' reputation and confusing the chicken-wing-eating public.
Big bucks are at stake in the battle between what one lawyer termed the "breastaurants" niche. Hooters, with 386 stores worldwide, had revenues of more than $750-million last year. WingHouse, with 14, had sales of more than $26-million.
Among the issues to be decided by the jury of five women and three men: Do the WingHouse servers, who dress in tight black tops and short black shorts, look confusingly like Hooters Girls with their white tank tops and shiny orange shorts?
During opening arguments in the civil case Wednesday afternoon, attorney Steve Hill, representing Hooters of America, could barely contain his disdain for Crawford Ker, a Dunedin native and former Dallas Cowboys football player who started Wing-House in 1994.
Describing Hooters' decor as a unique combination of elements that the chain's founders "bled and sweat for," Hill of Atlanta said, "Hooters blazed a trail that was a different trail from other sports bars and it paved that road with a substantial investment in marketing and promotion. Now that it's been a success, Crawford Ker wants to walk on that road, but he doesn't realize it's a toll road."
The elements of Hooters' atmosphere that help evoke the chain's distinctive "sensory overload," Hill said, include parchment paper menus reciting the "Hooters Saga" and road signs on the wall with such sayings as "Double Curves" and "Caution: Blondes Thinking." (Hill's mention of this sign did not spark a reaction from the lone blond on the jury.)
Ker's lawyer, meanwhile, posed the dispute as an old Goliath picking on an upstart David who is beating the giant at his own game.
"This is about an aging company that is being outperformed by the new competition," said Don Cowell of Tampa. "So it's using its wealth and muscle to try to snuff out the competition."
The exhibits bolstering Hooters' case will include copies of the Hooters University training manual (also known as the Hooters Bible) and a copy of WingHouse's training manual, as well as woodweave plates and table-top paper towel holders from both chains. Hooters' legal team also came to court Wednesday with a surfboard on a dolly, to be entered as an exhibit.
WingHouse, meanwhile, said it will introduce photos of other chains that could be considered similar to Hooters but which are not named in the lawsuit. Among them are Mugs and Jugs, Crabby Bill's and Beef O'Brady's.
Hooters, which has stores in China and Croatia, is bringing its case against the five WingHouse locations that have opened since mid-2001 in the Orlando/Daytona area. The other WingHouse restaurants are not named in the complaint.
Hooters is targeting the Orlando/Daytona area WingHouses because Hooters representatives say Ker more aggressively copied the chain's formula when he began expanding outside the Tampa Bay area.
"He began hanging surfboards, which he had never done in St. Pete," Hill said, referring to the first WingHouse restaurants. "And he copied practically the entire waitress uniform, right down to the Skechers."
Both parties admit that when Ker first opened, he was dismissed as just another knock-off, of which there had been plenty in the Tampa Bay area. In fact, Ker took over the space once occupied by a failed copycat called Knockers.
In 1997, when WingHouse had three restaurants, Ker was approached by a Hooters executive who warned him there were too many similarities between the chains.
Ker said he changed his waitresses' uniforms from white tank tops and red shorts to all black, and changed his advertising. His attorney said he thought that resolved Hooters' concerns.
Hooters' attorney said, however, that company executives were not satisfied with the changes. Hooters didn't respond at the time because executives got sidetracked with infighting between the chain's original six founders and its Atlanta franchisee. By 2001, that dispute had been resolved, with Atlanta Hooters of America taking over the chain, and four of the founders, now Hooters Management Co., retaining the restaurants in the Tampa Bay area, New York City and Chicago.
The local group has not joined Hooters of America in the lawsuit.
Hooters said it was motivated to take action against Wing-House's Orlando/Daytona stores because it was concerned Ker would use the stores as a launchpad for more expansion. Another irritant: The new WingHouses were going gangbusters.
"Starting in mid 2001 through 2003, those five units accounted for over $26-million in revenue for WingHouse and over $5-million of that is bottom-line profit," Hill said.
Though he acknowledged there are certain differences between the chains - Hooters serves only beer and wine, for instance, while WingHouse has a full bar - Hill told the jury minor differences don't matter.
"Ker built his chain on the sand of 10 or 15 trade dress (infringement) items," he said, citing the legal basis for Hooters' claim. "If he adds one or two things of his own, is that a solid foundation or not? I'd suggest it's a slippery foundation, indeed."
WingHouse's lawyer, meanwhile, said Hooters has nothing more than a marketing concept which cannot be protected by law. The same comparisons could be made between Home Depot and Lowe's or Burger King and McDonalds, he said.
"Hooters wants you to give them a monopoly in a particular market niche," Cowell said.
