What A Wonder Woman Burger

I’m pretty sure I see a cross-marketing opportunity here.

If you spend much time in Texas or the Southwest, then you’re familiar with WhatABurger, a chain of fast food hamburger restaurants based on San Antonio. It’s a popular, well-known, and very successful chain and you’ve probably had your share of burgers, fries and chocolate shakes.

And, if you spend much time at your local comic book store, then you’re familiar with Wonder Woman, the DC superhero who was born an Amazon on an island populated entirely by women and who found her way to the United Stated where she fights for truth, justice, and the American way. You also may have seen her in the recent Batman versus Superman movie and you probably know she’ll be played (again) by actress Gal Gadot in her own movie next summer.

So, what’s the problem? 

Well, it seems the new logo for the Wonder Woman movie closely resembles the familiar WhatABurger logo, the “Flying W,” which has been used since 1972 and is a registered trademark of the restaurant chain. Oddly, Wonder Woman’s own trademark, which was registered back in 1985, has always resembled the WhatABurger mark, but no one complained until the new logo was unveiled and someone overseeing the hamburger chain’s mark decided it was time to take action.

It is doubtful anyone would confuse Wonder Woman movie posters and associated consumer goods (e.g., action figures, comic books, etc.) for Whataburger ads. However, the cause for concern seems to have been sparked by a DC Comics filing with the U.S. Patent and Trademark Office in May seeking registration of the Wonder Woman mark in association with a number of food and beverage products, including fruit and vegetable juices, sports drinks, cookies, breakfast cereal, bubble gum, cake decorations, tea, and even “meat tenderizers for household purposes.”

Even though cheeseboards and fries were not mentioned in the registration applications, there is obviously a possibility of confusion when it comes to food products. Of course, if litigation were to ensue, one of the parties (either Whataburger or DC Comics) might be barred from using their current logo.

Luckily for purveyors of both comic books and cheeseburgers, it appears the two companies are trying to work things out amicably, perhaps even coming up with a cross-promotion campaign of some sort. But if all else fails, a WhatABurger spokesperson has suggested that a mutually beneficial resolution would allow Wonder Woman to “continue to focus her efforts on keeping planet Earth safe from evil villains while Whataburger continues to make delicious, 100-percent beef burgers.”

This isn’t the first time WhatABurger has had to address concerns about possible trademark infringement. 

In 2002, the Texas-based WhatABurger chain sued (and was sued) by a different What-A-Burger chain that has locations in Virginia and the Carolinas called.  The only substantive differentiation between the two companies was their respective branding, menu, and the use (or lack) of hyphens.  The two chains had been aware of one other since 1970, but for reasons that were never made clear waited more than 30 years to sue each other for alleged trademark infringement.  However, the trial court found no actionable “likelihood of confusion” and ruled that both chains could continue to use their marks with no changes. Essentially, the court found that it would be highly unlikely that anyone would be unable to tell the difference between the two hamburger chains.

Why It Matters. As illustrated by the 2002 battle between the two What-A-Burgers, not every instance of consumer confusion leads to a finding of trademark infringement. Likelihood of Confusion is the legal standard that determines whether or not trademark infringement has occurred and the specific standard itself is defined by a vast body of law and varies jurisdiction by jurisdiction. The essential ingredient for the likelihood of confusion test is that consumers encountering one trademark are likely to be confused with a different trademark. Trademark confusion means the incorrect assumption on the part of a hypothetical consumer that the two trademarks belong to the same source. 

Of course, actual confusion can be very influential in deciding the outcome of any trademark infringement lawsuit, but it is not a requirement in order to prevail. The likelihood factor means that a court merely must determine that the propensity for confusion is strong enough to warrant prevention of the newcomer's use of the mark. Consequently, many trademark infringement lawsuits proceed without a shred of evidence of any actual confusion.