Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd.

Dallas Cowboys Cheerleaders, Incorporated (Dallas Cheerleaders) (plaintiff) employed women (the cheerleaders) who performed at the Dallas Cowboys’ professional football games. During the football game performances and many other public appearances, the cheerleaders wore identical uniforms with specific colors, fringing, and stars. Dallas Cheerleaders also sold several commercial products depicting the cheerleaders in their uniforms. The cheerleaders and their uniforms gained nationwide popularity. In 1978, Pussycat Cinema, Limited (Pussycat) (defendant) began showing an explicit sex film in its theatre. The film portrayed a high school cheerleader wearing a uniform virtually identical to the Dallas Cheerleaders’ uniform. Advertisements for the film also depicted the woman wearing the similar uniform. Dallas Cheerleaders filed suit for trademark infringement and unfair competition under the Lanham Act. Pussycat argued that Dallas Cheerleaders could not establish a valid trademark in the uniform because the uniform was merely a functional item. Furthermore, Pussycat argued that Dallas Cheerleaders could not show that Pussycat’s use of the uniform created a likelihood of confusion—which is required to prove unfair competition—because the public would not be confused about the source of Pussycat’s film. However, Dallas Cheerleaders asserted that public confusion as to whether Dallas Cheerleaders approved or endorsed Pussycat’s use of the uniform was sufficient to establish a likelihood of confusion. The district court granted Dallas Cheerleaders a preliminary injunction. The Second Circuit temporarily stayed the preliminary injunction but after an expedited appeal reinstated the injunction. The Second Circuit then considered a full appeal.