ATLANTA---The U.S. Patent Office today firmly rejected an application from Hooters of America, Inc., based here, to extend patent protection to its signature orange shorts.
"After careful deliberation, we have determined that Hooters of America, Inc., is not the inventor of orange shorts worn tightly on shapely women and therefore not entitled to patent protection under the laws of the United States," says Kevin Druppos, U.S. Department of Commerce under secretary and chief of the U.S. Patent and Trademark Office (USPTO).
"Although Hooters of America, Inc., has undeniably put orange shorts on the map, given them visibility, and turned them into something of an icon for men, particularly men between the ages of 21 and 72, orange shorts have long predated their use in Hooters establishments and were not invented in any sense of the word by this patent applicant.
The first Hooters opened in 1983 in Clearwater, Fla.
"Of course we're disappointed, and we will appeal," says Edward ("Big Ed") Miller, CEO of Hooters of America, Inc., which operates 455 Hooters establishments in the U.S. and 28 other countries. "Do you know anyone who paid any attention at all to orange shorts before we came along and paired them with a pair of, you know, hooters in white T-shirts? Of course not. Even college sports teams have generally shied away from the color orange. I mean, you have Clemson University, and Syracuse, but how many others can you think of?"
In its ruling, USPTO says it's true that the orange shorts, when practically painted onto the hips of shapely women and worn with a white T-shirt with big owl eyes on them, are commonly associated with the drinking and dining experience of a Hooters establishment. But that linkage in the mind of the consumer fails to meet any of the statutory and regulatory tests used in the determination of patent decisions, although it suggests masterful marketing on the part of the Hooters operating company.
"We certainly applaud Hooters for taking what was essentially a moribund color--orange--and turning it into something that has immediate associations for consumers," says Druppos. "People get tired of only associating orange with Halloween and the citric fruit that goes by the same name. And there's certainly no denying that when those hot babes slip into those shorts and T-shirts and serve men beer, that something culturally significant is happening. But to go from that association to patent protection is a leap that only a company caught up in its own greatness would attempt. And I think you can see a lot of that at work here."
Miller, who is credited with coming up with the concept of pairing tight orange shorts with white T-shirts on women whose body shape attracts men's eyes, says he doubts very many of the public servants at USPTO have even been in a Hooters, and that if they had, they would share his view that "even a monkey could see we deserve a patent."
John Klander, general counsel for the company, says it is already preparing its appeal and is looking forward to having the decision by the Patent Office revisited. "Maybe we didn't invent orange shorts per se, but we did invent the idea that if you put a slinky pair of them on a hot woman you can sell a lot of beer. And I can tell you we have sold enough beer to be able to see this process through to the end. So, I can promise you, we are going for it. We have every intention of putting on display the same chutzpa in this patent process that helped make us the iconic eating and drinking establishment that we are."