Would you like lettuce and tomato on that Wonder Woman burger? Fine, but make sure the sandwich wrapper doesn’t make you think of Whataburger instead.
The Houston Chronicle reported last week that Warner Brothers—set to release the first Wonder Woman movie next year—and the Texas-based regional fast food chain are engaged in a “friendly trademark discussion” over the updated version of the “Stacked W” logo that adorns the superheroine’s costume.
Apparently, the parties are trying to forestall any trademark problems that could arise between Whataburger’s menu items and any foods that may be marketed in connection with the movie.
When the superheroine first appeared in comic books in 1941, her costume sported a golden eagle, a symbol that remained for decades. In 1982, DC Comics Inc. decided they needed something more distinctive that could serve as a protectable trademark and that was less tied to American patriotism. After all, the character is an Amazon from Themyscira, a location taken from Greek mythology.
Enter the Wonder Woman “Stacked W” logo that does bear a conceptual resemblance to Whataburger’s “W” logo. Although it’s been around for over 30 years, the development of the movie, and the possibility of associated food marketing, apparently put it on the chain’s radar.
Not that there aren’t other double W logos around. Lots of Twitter users have, for instance, tweeted over the years about the similarities among logos used by Wonder Woman, Weezer, Whataburger and others.
All those stacked, winged W logos remind trademark lawyer Erica D. Klein of Kramer Levin Naftalis & Frankel LLP, New York, of the old World Wrestling Federation logos before they changed their name to the “WWE” — a move that, ironically, stemmed from the federation's own trademark dispute with the World Wildlife Foundation.
Klein said the fact that the Wonder Woman logo may “call to mind” the Whataburger logo isn’t enough to establish trademark infringement under law.
For Whataburger to have a serious trademark claim against Warner Bros., it would have to satisfy a multi-factor likelihood of confusion test, which exists in various forms in different federal appeals courts.
If Whataburger were to sue in New York, DC Comics’ home court, the relevant test comes from a U.S. Court of Appeals for the Second Circuit case involving Polaroid Corp. The chain would have to satisfy concerns raised in that case dealing with such issues as the strength of its mark, the similarities between the logos, whether similar W-based logos are being used in the food industry, and whether a Wonder Woman movie-sponsored food product would really make customers think of Whataburger.
Whataburger has been using its stacked W logo since 1972, so if the likelihood of confusion factors add up in its favor, it could have the drop on Wonder Woman. Or maybe the parties could agree to cross-sponsor products so the world ends up with, say, an Amazonian who likes her burgers with sweet and spicy pepper sauce.
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