Texas-based Whataburger sues NC What-A-Burgers for trademark infringement

NORTH CAROLINA — Texas-based Whataburger is suing several North Carolina restaurants of nearly identical names for trademark infringement.

The lawsuit was filed in federal court on Tuesday. The North Carolina What-A-Burger #13 restaurants are controlled by Zeb Bost and are based at addresses on W. Franklin Street in Mount Pleasant, Trinity Road in Raleigh, and Randalls Ferry Road in Norwood.

The plaintiff cited the impact the Texas chain has had on the country, including the anticipation that builds whenever a new location is announced.

The Texas chain is filing the lawsuit after it confirmed news of its arrival in North Carolina. It alleges the defendants sell goods and services “that are identical to Whataburger’s offerings, and identical or highly related to the goods and services covered by Whataburger’s federal registrations.”

Whataburger alleges its trademarks “exclude others from using the same or confusingly similar marks subsequent to the issuance of Whataburger’s first registration in 1957.”

According to the lawsuit, the defendants claim to have started using “What-A-Burger #13” around 1969, more than 10 years after Whataburger’s first copyright registration.

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Whataburger said it contacted the defendants on Oct. 13, 2022 in anticipation of coming to the Tar Heel State. The parties signed a “confidential coexistence agreement” that allowed limited use of “What-A-Burger #13.” That agreement was effective May 19, 2023.

One of the conditions was that the North Carolina restaurants could use the name with certain conditions for existing brick-and-mortar locations and an existing food truck. But the lawsuit alleges the Norwood entity formed days before the agreement was signed and wasn’t disclosed to Whataburger. They also allege the food truck has used the trademark in ways not permitted by the agreement.

Whataburger said it reached out to the defendants multiple times, but they continued to violate the agreement. As previously decided, when the terms of the agreement were violated, the agreement ended, meaning the defendants were no longer allowed to use the trademarks.

“Defendants’ continued and ongoing use of the What-A-Burger #13 [trademark] is without authorization, either under the Agreement or otherwise,” the suit reads.

Whataburger is suing for federal trademark infringement, federal and common law unfair competition, breach of contract, and unfair and deceptive trade practices.

They’re asking the North Carolina companies to be permanently restrained from using the What-A-Burger #13 trademark and anything else “confusingly similar” to Whataburger.

Channel 9 is reaching out to What-A-Burger #13 for comment.

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