What Do Whataburger and Wonder Woman Have In Common?

With the reemergence of Wonder Woman in popular media, Texas hamburger chain Whataburger has found itself embroiled in a potential trademark dispute with DC Comics over the ubiquitous “W” logo.

Since 1972, Whataburger has been using a “flying W” to represent its burger chain.

In 1985, DC Comics registered a similar flying W for use with Wonder Woman’s merchandising and comic books.

Although the logos were similar, Whataburger did not take issue with the registration because DC Comics’ use did not overlap with Whataburger’s use.  More specifically, DC Comics did not register the logo for use with food and beverage at that time.  As such, Whataburger did not seem to take issue with DC Comics’ registration of the logo despite the similarity in appearance.

DC Comics Expands Use of Wonder Woman Logo

With the resurgence in Wonder Woman’s marketability and popularity, DC Comics has now filed for a number of new uses for the Wonder Woman logo.  The new applications now cover a new range of goods that vary from bubble gum to sports drinks.  With this recent foray into food and beverages, Whataburger states that they have contacted DC Comics to discuss their respective intellectual property rights and marketing channels.  While Whataburger claims that the talks have been friendly, and no current disputes between the two entities are pending, one does wonder whether DC Comics has any interest in respecting the rights of localized hamburger chain when Wonder Woman, as a movie franchise, has already enjoyed international success and has a sequel in production currently pending.

In fact, it is not uncommon for movie franchises to want to retain the rights for use of their logos with food and beverages in order to be allowed to ink lucrative licensing deals. For instance, if DC Comics wanted to grant Whataburger’s competitor, McDonald’s, the right to use the Wonder Woman logo for a summer burger campaign, DC Comics may not want to agree to stay out of the restaurant goods and services’ marketing channels.  As such, in situations like these, it would have been better for Whataburger to contact DC Comics long before the mark became popular or oft-used.

Trademark Rights Protection Shouldn't Be In Hindsight

As such, the lesson that can be learned from this scenario is that it would behoove trademark owners to actively monitor their brands and marks and have strategies in place regarding when to serve cease-and-desist letters or when to dispute pending trademark applications in order to avoid the registration of confusingly similar marks.  Once the balance of power shifts, and a later-registered mark becomes more widely recognized, the original trademark owner may find it difficult to negotiate terms that benefit them.

For more information on this topic, please visit our Trademark Enforcement service page, which is part of our Trademark Practice.

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About the Firm:

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the trademark law firm and its trademark attorneys may be found at www.klemchuk.com.

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