Whataburger sues North Carolina mom-and-pop What-A-Burger #13 over name

Whataburger restaurant in San Antonio, Texas. (AP Photo/Eric Gay)

A four-ounce patty topped with coleslaw, chili and mustard on a bun, fries on the side, and a Witch Doctor - a mix of Coke, Sun Drop, cherry Fanta, pickle juice and pickle slices - to wash it all down.

It’s a combo that has long been on the menu at a beloved, family-owned North Carolina restaurant called What-A-Burger, and one Stephen Ray, who lives an hour away, says is worth every minute of the drive.

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Since moving to Tega Cay, S.C., four years ago, he has come to relish the unusual meal - and how the decades-old burger spot has become a treasured gathering point.

“Grandparents to grandchildren, they all come together on the weekends,” Ray said. “You can tell how comfortable they all feel there.”

Now he worries for the future of the local haunt. This month, the Texas-based corporate chain Whataburger sued What-A-Burger #13, the North Carolina company operating two burger joints in Mt. Pleasant and Locust, for trademark infringement, unfair competition and breach of contract.

The similarly named eateries say they previously had a confidential agreement. But now, as Whataburger (the private-equity owned chain of roughly a thousand locations stylized as one word) gets ready to expand into North Carolina, it claims that What-A-Burger #13 (the local spot with the hyphens and capitalized letters) has violated the 2023 terms.

The lawsuit asks that the smaller eatery be barred from using the What-A-Burger #13 name or any other that is “confusingly similar” to Whataburger.

Whataburger, which boasts annual sales of more than $3 billion and, according to its lawsuit, plans to open multiple North Carolina locations by 2025, said it does not want to harm the local eatery.

“Whataburger is a loyal supporter of local businesses, including small restaurants,” the company told The Post in a statement. “It’s important to note that we are not asking What-A-Burger #13 to shut down its restaurants.”

Zeb Bost, the owner of What-A-Burger #13, feels differently.

“After being in business for seventy years, What-A-Burger’s future is being threatened by this large national retailer,” said Bost in a statement shared with The Post through Kenneth Haywood, an attorney at Howard Stallings Law Firm. “And the Bost family is being victimized by big money interests.”

The two companies now facing off in court have similar origin stories. Each began serving burgers in the ’50s, starting out small and local.

The first Whataburger opened in 1950 in Corpus Christi, Tex., the brainchild of an entrepreneur who wanted to make a hamburger good enough “that when you took a bite you would say ‘What a burger!’” according to the Texas State Historical Association. Its federal trademark rights were granted in 1957, and its first out-of-state location opened in 1959, with hundreds more following in the decades to come. The business was family-owned until 2019, when it sold a majority stake to a private equity firm, BDT Capital Partners.

The first North Carolina What-A-Burger, meanwhile, was founded by E.L. Bost and C.W. Bost in 1956 in Kannapolis, N.C., according to Our State, a North Carolina magazine. At one time, the chain counted 15 locations, each numbered. What-A-Burger #13 was founded in 1969, according to the lawsuit.

Some of the ones still standing are owned by different parts of the family. Others are no longer connected to the Bosts and operate under different names but still call their burgers What-A-Burgers. North Carolinians treasure the local joints for serving up a heaping dose of nostalgia, Our State reported.

Only What-A-Burger #13 is named in the lawsuit; the other North Carolina locations are not part of it.

Zeb Bost, who is the grandchild of one of the founders and operates the two What-A-Burger #13 restaurants, said in his statement that the Bost family in 1970 entered into an agreement with the then-owner of Whataburger that it would operate without interference in several North Carolina counties, including Stanly and Cabarrus counties, where his two restaurants are located.

Bost said the Texas company broke that agreement in 2022, but he did not respond to questions about Whataburger accusing them of breaking their 2023 agreement.

The lawsuit alleges that What-A-Burger sells 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,” and that the defendants started using “What-A-Burger #13” around 1969, more than 10 years after Whataburger’s first copyright registration.

“We, too, are very unhappy the situation has come to this,” the Texas chain said in a statement. “We have extended every opportunity for What-A-Burger #13 to cease and desist from breaching the parties’ agreement and infringing our Whataburger trademarks.”

The statement added that the owner of What-A-Burger #13 has breached their 2023 agreement at least four times and that they are asking the owners to either live up to the agreement or change the name of their restaurants and food trucks.

“We know they have local fans, and we want all local businesses to thrive,” the statement said.

It’s not the first time a court battle has broken out over the What-A-Burger/Whataburger name. A third chain - What-A-Burger, founded before 1957 in Virginia - was in a trademark fight with Texas’s Whataburger in 2002, which ended with the court ruling each could keep its name because consumers were unlikely to be confused by the two companies.

News of the current lawsuit did not sit well with some North Carolinians, as reported by Court Watch. Cassie Clark, a native North Carolinian, told The Post that while she doesn’t have the full context behind the confidential agreement, to her, it doesn’t matter.

“You don’t get to move into my state and push around a small business,” she said. “This is that business’s home, and for us this is not a legal issue but a sentimentality issue.”

Although Clark, a podcaster and blogger who focuses on celebrating life in North Carolina, hasn’t eaten at What-A-Burger in years, the mom-and-pop eatery holds nostalgic value for her as she visited it frequently while traveling the state with her father.

When she first posted about the lawsuit on social media, she was flooded with comments from aggrieved locals, she said.

“This is North Carolina,” she said. “We are resistant to change. We chase familiarity. And we are nostalgic for the places we have grown to love.”

Clark will not be eating at the “corporate Whataburger” when it opens, she said. Instead, she plans to return to What-A-Burger #13.

Sam Smith, of Charlotte, said he has memories of visiting What-A-Burger #13 throughout his childhood. He described it as a throwback local treasure.

“It’s a staple here and has become cemented in the lives of many of us, and has been around longer than a lot of us have been alive,” he said. “It’s like a constant comfort knowing that no matter all the change, you can still get a good old-fashioned burger at What-A-Burger.

“Fast food is a dime a dozen, but these places are a dying breed,” he said.

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