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What The Wambie Whopper Battle Teaches Us About Trademarks And Social Media
Angus Kidman
5 November 2013 11:30 AM
A battle between fast-food giant Hungry Jack’s and a single Central Coast burger joint over the use of the name ‘Whopper’ has ignited social media in recent days. Everyone loves a David versus Goliath narrative, but is it really credible that someone opening a store less than 20 years ago was entirely ignorant of the use of the Whopper brand by Hungry Jack’s and Burger King?
Here’s the brief background: the Wambie Whoppers store has been operating in Wamberal since the mid-1990s. (The campaign to protect the store claims it has been around for “about 20 years”, though the business name appears to have been registered since September 1995, making it 18 years old.)
Earlier this year, the store received a legal letter from Hungry Jack’s asking it to stop using the ‘Whopper’ name. Burger King has sold a burger called the Whopper since 1957, and that has been available in Australia since 1971 via Hungry Jack’s, which has operated what amounts to the Burger King franchise in Australia since that time. (There was a legal dispute between Burger King and Hungry Jack’s between 1996 and 2001, but stores remained open under both brands during that time.)
The Facebook page for the Save Wambie Whopper campaign has more than 20,000 likes as I write this. Purely to avoid a continued hammering on social media, Hungry Jack’s management might well decide to leave this alone and leave that single store in relative obscurity. But to be honest that seems a little unfair to me.
Taking a purely legal view, Burger King first applied to trademark the phrase ‘Whopper’ in association with hamburgers in Australia back in 1969. The current active registration dates to November 1996.
Searching trademark registries in 1995 was a lot more difficult than it is now, so you might argue that Wambie Whoppers simply weren’t aware of the brand when the store was set up. To which my honest reaction would be: really ? We’re not talking a small chain here, and we’re talking the name of a signature product. I find it hard to believe anyone setting up a burger joint, then or now, wouldn’t have been aware of the association.
There’s an interesting irony here, given that the reason Hungry Jack’s was used as the Australian brand name was that the name ‘Burger King’ was already trademarked by a store in South Australia. Burger King reclaimed it in 1996 when that trademark lapsed.
Lessons for other businesses: when setting up a name, take time to check for competing trademark and business name registrations — it’s less hassle in the long run. But if you do end up in a battle, enlist social media to the full. You’ll see plenty of support, even if much of it is seemingly irrational.
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