My friend Bre loves tacos. And I love my friend Bre. Therefore, I love tacos.
For those of you who don't know what Taco Cabana is, allow me to enlighten you. Taco Cabana is an awesome Tex-Mex fast food restaurant, and it's only available in certain places around the world, like Texas. So whenever I visit Uncle Sam in Texas, I always make a visit to eat as many tacos and quesadillas as I can before going back to the east coast.
Last time I was visiting Uncle Sam, I was a law student, and to me, Taco Cabana was simply a place where I could eat great Tex-Mex food on the go. But now that I am a sophisticated patent attorney, Taco Cabana has another meaning to me. Taco Cabana was the prevailing party in the case of Two Pesos, Inc. v. Taco Cabana, Inc. 505 U.S. 763 (1992).
I recently went to Taco Cabana, and took some pictures to show you all what Taco Cabana looks like. Like many chain restaurants, Taco Cabana looks pretty much the same wherever you go. First, you'll notice the neon paint. Usually it's hot pink, pastel green, or some other tropical color. Second, it's pretty festive. There are usually string lights outside, a patio area, and tropical/Latin inspired decorations. These characteristics of the visual appearance of Taco Cabana, or the total image of Taco Cabana defines what is called “trade dress.” Trade dress refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers.
This means that the neon paint and festive appearance of Taco Cabana help signify the source of its food to consumers like myself. Another example would be the famous hut-shaped roof of Pizza Hut restaurants. Whenever consumers see a building with a hut-shaped roof, consumers identify that building as a Pizza Hut restaurant and associate it with Pizza Hut pizzas. Yet another example would be a product packaging like Hershey’s Kisses in little tin foil wrappers with a tag hanging out. You see a tear drop-shaped chocolate wrapped in a tin foil wrapper, and you know it’s Hershey’s Kisses.
Back to Two Pesos. Back in 1985, Two Pesos opened a chain of competing Tex-Mex restaurants in Texas and adopted a motif similar to Taco Cabana’s. Taco Cabana’s sued, claiming trade dress infringement in violation of the Lanham Trademark Act. Two Pesos defended by arguing that Taco Cabana did not acquire a secondary meaning. So the issue was whether a distinctive trade dress was protectable under the Lanham Trademark Act without showing a secondary meaning. The Supreme Court said yes. Although Taco Cabana did not acquire a secondary meaning at the time, it was nonetheless distinctive and therefore protectable. Two Pesos is a landmark case and is taught in pretty much all trademark classes.