It’s déjà vu all over again

Trade dress cases are fun.  Trade dress typically refers to the visual appearance of something – such as a product’s packaging or the design of the product.  The shape of a Coca-Cola bottle is an example of trade dress.  When you see that distinctive bottle shape, you immediately think of the source, Coca-Cola.

One of the more popular trade dress cases (at least in Florida) was the “Hooters v. Winghouse” case.  There, Hooters’ parent company sued the company behind the Winghouse chain of restaurants.  Hooters claimed that its trade dress was “the Hooters Girl uniform; rough-hewn rustic interior woodwork, including light colored wooden walls and floors; dining tables consisting of red wood of varying hues, surrounded by lighter pine wood, and covered with a shiny epoxy; a table-top setup consisting of a wooden vertical paper towel
spool, wood-weave plateware, and table tents; a parchment paper menu bearing the story of the restaurant on its reverse side; surfboards; wall-mounted photographs of celebrities taken with servers; pictures of girls in attractive swimwear; road signs displaying clever sayings; hula
hoops; large-bulb Christmas lights; wall-mounted sports memorabilia; bumper stickers; and “beachy” music from the ‘50s through the ‘80s.

However, the court in that case focused on the very first item in that list – the Hooters Girl uniform.  Ultimately, the court found that the Hooters uniform is “functional,” and to deny another business from being able to use waitresses in shorty-shorts and tank tops would be an “impermissible burden on competition.”  Thus, you now have two places to go get wings and see girls in tiny outfits.  You just need to choose if you prefer orange/white uniforms or black/red.

Now that you have an idea about what trade dress is, Florida IP Trends presents:

Yoga Berry Corporation v. Coco Mango, LLC [COMPLAINT]

This case got my attention because of the “Yoga Berry” plaintiff.  My first thought was that famed catcher Yogi Berra must have gotten into the health nut business or something.  But no, there does not seem to be a relationship between Yogi Berra and Yoga Berry (although I cannot confirm or deny it).  That makes this a somewhat unsympathetic plaintiff for me.  Before even reading the complaint I was thinking, “Gee, if these guys are trading on the name of the great Yogi Berra, what beef do they have with Coco Mango?

Well, the beef is in the yogurt.  [author’s attempt at a Yogiism]

Yoga Berry is suing the operator of a “Coco Mango” yogurt store.  Yoga Berry alleges that Coco Mango copied the distinctive trade dress found in the YOBE yogurt stores.

Yoga Berry has a tough hill to climb.  Just as Hooters learned that even a distinctive and well-recognized decor can ultimately fail as trade dress, Yoga Berry will have to prove that its trade dress is protectable.  The Complaint could be a little clearer in defining the trade dress, but it looks like a YOBE store has “futuristic white stools, chairs, table, and benches,” and “distinctive light fixtures” among other things.  Pictures or exhibits would have been nice in a complaint like this.  (I’m sure the judge would have appreciated them, too.)  However, since there were none, I took the opportunity to find some.  Having never been in either store, I just couldn’t picture what the Complaint was trying to show.

YOBE Store