## Facts

- Dallas Cowboys Cheerleaders, Inc. employed cheerleaders who performed at games and public events and licensed merchandise featuring a distinctive cheerleader uniform.
- The uniform’s overall appearance combined specific colors and design elements (including star decorations) used consistently and widely promoted through media exposure and commercial licensing.
- Pussycat Cinema, Ltd. and its principal produced and exhibited *Debbie Does Dallas*, a pornographic film in which a character seeks to become a cheerleader for a team plainly modeled on the Dallas Cowboys Cheerleaders.
- The film and its advertising depicted a cheerleader outfit that closely resembled the plaintiff’s uniform in overall look, with only minor alterations.
- Dallas Cowboys Cheerleaders sued in federal court alleging Lanham Act § 43(a) false designation/infringement, unfair competition, and New York dilution.
- The district court issued preliminary injunctions prohibiting defendants from distributing, exhibiting, or advertising the film using the challenged uniform imagery; defendants appealed.

## Issues

1. Whether the uniform’s overall configuration, though part of a functional garment, was nonfunctional in design and had acquired secondary meaning sufficient for trade dress protection.
2. Whether defendants’ use of a strikingly similar uniform in the film and advertising created a likelihood of consumer confusion as to sponsorship, authorization, or endorsement.
3. Whether the First Amendment protected defendants’ use of the uniform in an expressive work and barred Lanham Act and related state-law relief.
4. Whether the requirements for a preliminary injunction were met, including likelihood of success and irreparable harm.

## Decision

- The Second Circuit affirmed the preliminary injunctions.
- The court held the uniform’s overall design could function as protectable trade dress because the design features were nonfunctional and the public associated the look with a single source.
- The court found a likelihood of confusion that the cheerleaders sponsored, endorsed, or were otherwise connected with the film, even if viewers did not believe the actual cheerleaders appeared in it.
- The court rejected the First Amendment defense because trademark law may restrict uses that are misleading as to source or sponsorship.
- The court concluded the plaintiff showed probable success on the merits and irreparable harm, including loss of control over reputation and goodwill from association with sexually explicit content.

## Legal Principles

- Trade dress protection may extend to the design or configuration of a functional item when the design is nonfunctional and has acquired secondary meaning identifying source.
- Likelihood of confusion under § 43(a) includes confusion as to sponsorship, authorization, or endorsement, not merely confusion about the physical origin of a product.
- Use of a mark or trade dress in an expressive work is not immune from Lanham Act liability when it is likely to mislead consumers about sponsorship or affiliation.
- In trademark cases, a showing of likely confusion commonly supports a finding of irreparable harm due to damage to goodwill and loss of control over reputation, supporting preliminary injunctive relief.
- State-law dilution and unfair competition claims may be supported where use threatens tarnishment of a distinctive symbol and injury to reputation.

## Conclusion

The Second Circuit upheld preliminary injunctive relief preventing defendants from using a confusingly similar cheerleader uniform in a pornographic film and its advertising, concluding the uniform’s overall look was protectable trade dress, defendants’ use likely implied sponsorship or endorsement, and the First Amendment did not bar relief against misleading source-identifying use.


Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979)