IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WHATABRANDS LLC, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. 3:24-CV-547
§
WHAT-A-BURGER #13, INC., § JURY DEMANDED
WHAT-A-BURGER #13 LOCUST §
PARTNERS, LLC, WHAT-A- §
BURGER 13 MOBILE FOOD, LLC,
WAB #13, LLC, and Zeb Bost, §
Defendants. §

ORIGINAL COMPLAINT

Plaintiff Whatabrands LLC (“Whataburger”) brings this complaint for trademark

infringement and unfair competition under federal and state law and breach of contract

under state law against Defendants What-A-Burger #13, Inc., What-A-Burger #13 Locust

Partners, LLC, What-A-Burger 13 Mobile Food, LLC, WAB #13, LLC, and Zeb Bost

(collectively, “Defendants”).

NATURE OF ACTION AND JURISDICTION

1. This is an action for trademark infringement and unfair competition 15

U.S.C. §§ 1114 and 1125(a); unfair and deceptive trade practices under N.C. Gen. Stat. §

75-1.1; and breach of contract and unfair competition under North Carolina common law.

2. This Court has jurisdiction over the subject matter of this action under 15

U.S.C. § 1121 and 28 U.S.C. §§ 1331 & 1338. This Court has supplemental jurisdiction

over the state law claims under 28 U.S.C. § 1367(a).

Case 3:24-cv-00547-MOC-DCK Document 1 Filed 06/11/24 Page 1 of 18

 3. Defendants are subject to personal jurisdiction and venue in this District

given their contacts with the state of North Carolina. Defendants reside in this District and

a substantial part of the events giving rise to the allegations occurred here.

THE PARTIES

4. Plaintiff Whataburger is a Texas limited liability company with a principal

office at 300 Concord Plaza Drive, San Antonio, TX 78216.

5. Defendant What-A-Burger #13, Inc. is a North Carolina corporation with a

principal office at 8330 W Franklin St., Mount Pleasant, NC 28124.

6. Defendant What-A-Burger #13 Locust Partners, LLC is a North Carolina

limited liability company with a principal office at 5410 Trinity Rd., Ste. 210, Raleigh, NC

27607.

7. Defendant What-A-Burger 13 Mobile Food, LLC is a North Carolina limited

liability company with an address of 17412 Randall’s Ferry Rd., Norwood, NC 28128.

8. Defendant WAB #13, LLC is a North Carolina limited liability company

with an address of 17412 Randall’s Ferry Rd., Norwood, NC 28128.

9. On information and belief, Defendant Zeb Bost is an individual with an

address of 17412 Randall’s Ferry Rd., Norwood, NC 28128. Mr. Bost owns or otherwise

controls the other Defendants.

10. Defendants What-A-Burger #13, Inc., What-A-Burger #13 Locust Partners,

LLC, and Defendant What-A-Burger 13 Mobile Food, LLC are referenced herein as

“Signatory Defendants.”

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 FACTUAL BACKGROUND

A. The Iconic Whataburger

11. Founded in 1950, Whataburger started as a single hamburger stand in Corpus

Christi, Texas owned by Harmon Dobson, whose plan was to “make a better burger that

took two hands to hold and tasted so good that when you took a bite you would say ‘What

a burger!’”

12. The plan worked. Today, Whataburger operates over 1,000 restaurants

across 16 states. It annually serves over 60 million customers. And while it now offers an

array of food and beverage items aside from hamburgers, its burgers have won the “Best

Burgers in America” contest and are routinely ranked by food publications among the

nation’s best.

13. Whataburger’s footprint extends beyond its restaurants, with retail versions

of its popular condiments and sauces, as well as other food items, available in over 5,000

grocery stores in 25 states and in Mexico. For its 70th anniversary in 2020, Whataburger

launched its Whataburger Food Truck, which has embarked on multi-state tours and

appears at a variety of public events.

14. Goodwill in the WHATABURGER Mark among non-Texans is equivalent.

Local news outlets in disparate places like New Mexico, Arkansas, and South Carolina

often publish articles reflecting public excitement surrounding the potential opening of a

new Whataburger location in their state. When the first Whataburger opened in Atlanta in

2022, customers waited—day and night—in lines that stretched blocks from the restaurant.

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 B. Whataburger’s Nationwide Trademark Rights

15. Whataburger has continuously and extensively used the mark

WHATABURGER (the “WHATABURGER Mark”) for an array of restaurant services and

food products, among other goods and services, since 1950.

16. Whataburger has widely advertised and promoted its goods and services

under the WHATABURGER Mark and received significant national publicity for its

offerings.

17. The WHATABURGER Mark is inherently distinctive and serves to identify

the source of Whataburger’s offerings to the public and to distinguish its offerings from

others.

18. Additionally, as a result of Whataburger’s extensive use and promotion of the

WHATABURGER Mark, and its investment of significant effort and resources in

advertising and promoting its WHATABURGER Mark, the WHATABURGER Mark has

become distinctive and is recognized by consumers, who have come to know, rely on, and

recognize the goods and services of Whataburger by these marks.

19. Whataburger owns strong common law rights in the WHATABURGER

Mark.

20. The WHATABURGER Mark is famous within multiple states.

21. Whataburger owns numerous federal trademark registrations issued by the

United State Patent and Trademark Office covering the WHATABURGER Mark and other

WHATABURGER formative marks, including those listed in the chart below.

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 Mark Reg. Reg. Date Goods/Services
No.

WHATABURGER 652137 9/24/1957 Class 30: Hamburger sandwich

891082 5/12/1970 Class 42: Restaurant services and drive in

restaurant services

1011927 5/27/1975 Class 29: Hamburgers, cheeseburgers,

french fried potatoes, fried pies, onion
rings, malt and shake beverages

Class 32: Soft drinks

Class 42: Restaurant and drive-in

restaurant services

1011928 5/27/1975 Class 29: Hamburgers, cheeseburgers,

french fried potatoes, fried pies, onion
rings, malt and shake beverages, and
frankfurter sandwiches

Class 32: Soft drinks

Class 42: Restaurant and drive-in

restaurant services

WHATABURGER 1014196 6/24/1975 Class 29: Prepared hamburger sandwich

JR. for consumption on or off the premises

WHATABURGER 2335590 3/28/2000 Class 42: Restaurant Services

WHATABURGER 2757109 8/26/2003 Class 36: Charitable fundraising services

WHATABURGER 3188132 12/19/2006 Class 41: Providing stadium facilities for

FIELD sporting events, exhibitions, conventions,
community festival events and concerts

3188136 12/19/2006 Class 41: Providing stadium facilities for

sporting events, exhibitions, conventions,
community festival events and concerts

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 4592132 8/26/2014 Class 41: Providing stadium facilities for
sporting events, exhibitions, conventions,
community festival events and concerts

WHATABURGER 4845240 11/3/2015 Class 43 (excerpt): Food preparation

services . . . drive-in restaurant services .
. . group meal services, namely, providing
takeout restaurant services to groups
travelling by automobile, truck or bus,
school meal preparation services, and
preparation of meals for consumption by
groups of travelers on or off the premises;
carryout restaurant services; cafe
services; restaurant services featuring
breakfast foods and beverages; fast-food
restaurant services; preparation of
beverages for consumption on or off the
premises . . . restaurant services featuring
hamburgers, cheeseburgers, chicken
sandwiches, fish sandwiches and other
meat sandwiches; fast casual restaurant
services; drive-through restaurant
services . . . dine-in restaurant services;
quick service restaurant services . . .

WHATABURGER 4921566 3/22/2016 Class 29 (excerpt): Hamburger; savory

potato based snack foods; salads, namely,
garden salads, vegetable salads, fruit
salads, meat salads, chicken salads,
prepared protein salads, garden salads
with grilled or fried meat or poultry,
vegetable salads, with grilled or fried
meat or poultry; dried fruits; potato fries;
salads, except macaroni, rice and pasta
salads; combination meals consisting
primarily of processed chicken breast and
chicken breast chunks served as breaded
and fried chicken nuggets, strips, tenders,
bites, or morsels, dipping sauces, fries,
and a drink for consumption on or off the
premises . . .

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 WHATABURGER 4921567 3/22/2016 Class 30 (excerpt): Hamburger
sandwiches
. . . cheeseburger sandwiches . . . breakfast
sandwiches consisting of eggs, bacon,
sausage, cheese, and/or condiments;
honey barbecue sauce; fried fruit pies and
pastries; grilled food products for
consumption on or off the premises,
namely, grilled meat sandwiches, grilled
chicken sandwiches, grilled cheese
sandwiches, grilled vegetable sandwiches
. . . pancake mix . . . honey butter sauce;
salad dressings . . . pancake syrup;
jalapeno cheddar biscuits . . . condiments,
namely, barbeque sauce, dipping sauces,
ketchup, mayonnaise, mustard, pancake
syrup, salad dressings, vinaigrettes, honey
mustard salad dressing, tartar sauce,
honey barbeque sauce, creamy pepper
sauce, jalapeno ranch sauce, peppercorn
ranch sauce, honey mustard, pepper, salt,
and sugar substitutes . . .

WHATABURGER 4921568 3/22/2016 Class 32: Beverages, namely, non-

alcoholic beverages in the nature of fruit
beverages and carbonated beverages; soft
drinks for consumption on or off the
premises; non-alcoholic drinks sold for
consumption on or off the premises,
namely, fruit juices, fruit flavored drinks,
sports drinks, fruit punch, drinking water,
lemonade, non-frozen non-alcoholic
carbonated beverages; carbonated and
non-carbonated soft drinks and fruit
juices; soft drinks

22. Each of the registrations listed in the chart above is valid, subsisting, and has

become incontestable under 15 U.S.C. § 1065. True and correct copies of the

corresponding registration certificates are attached hereto as Exhibit A.

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 23. Whataburger’s federal trademark registrations are “conclusive evidence” of

the validity of the WHATABURGER Mark, as well as Whataburger’s continuous use of

the WHATABURGER Mark, ownership of rights in the WHATABURGER Mark, and

exclusive right to use the WHATABURGER Mark with the registered goods and services,

as well as related goods and services, under 15 U.S.C. § 1115.

24. Whataburger’s federal registrations confer upon Whataburger nationwide

priority in the right to use the WHATABURGER Mark and to exclude others from using

the same or confusingly similar marks subsequent to the issuance of Whataburger’s first

registration in 1957.

C. Whataburger’s Expansion to North Carolina

25. Whataburger opened its first location outside of Texas in 1959 and has long

operated restaurants across the southwest and southern United States.

26. In 2020, Whataburger publicly announced plans to enter new markets and

begin franchising its restaurants for the first time in almost 20 years.

27. Between 2020 and 2022, Whataburger expanded its geographic footprint

from 10 to 14 states with new locations is Missouri, Tennessee, Colorado, and Kansas.

28. In 2024, Whataburger opened its 1000th location and expanded its footprint

to 16 states with new locations in Nevada on The Strip in Las Vegas and in Greenville,

South Carolina.

29. Local news outlets in North Carolina began speculating as early as 2022

about Whataburger’s potential expansion into the state.

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 30. In April 2024, Whataburger publicly confirmed the reports of its plans to

open restaurants in North Carolina sometime in 2025.

D. Defendants and their What-a-Burger #13 Business

31. Defendants offer restaurant services in North Carolina using the name and

mark What-A-Burger #13 (the “What-A-Burger #13” Mark).

32. Defendants offer 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.

33. As reflected in signage at Defendants’ restaurants and on their website and

food trucks, Defendants claim they began using the What-A-Burger #13 Mark in

connection with their business no earlier than 1969—over a decade after Whataburger

received its first federal trademark registration for the WHATABURGER Mark.

34. Each Defendant uses the What-A-Burger #13 Mark in connection with two

brick-and-mortar restaurants located in North Carolina with addresses at 8330 West

Franklin Street, Mount Pleasant, North Carolina, and 101 North Central Avenue, Locust,

North Carolina and/or in connection with one or more mobile food trucks.

E. The Parties’ Coexistence Agreement

35. Whataburger contacted certain of Defendants on October 13, 2022 in

anticipation of its entry into North Carolina to notify them that continued use of their What-

A-Burger #13 Mark creates a likelihood of confusion and thus infringes the

WHATABURGER Mark given Whataburger’s nationwide priority in its

WHATABURGER Mark as of 1957.

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 36. Signatory Defendants and Whataburger ultimately signed a confidential

coexistence agreement (the “Agreement”) permitting limited uses of the What-A-Burger

#13 Mark by Signatory Defendants under controlled conditions. The Agreement has an

Effective Date of May 19, 2023.

37. The Agreement includes a term that Signatory Defendants could not use the

What-A-Burger #13 Mark except as expressly allowed by the terms of the Agreement.

38. Per the Agreement, Signatory Defendants could use the What-A-Burger #13

Mark only in connection with their existing brick-and-mortar locations (identified above)

and in connection with their then-existing single food truck in limited ways.

39. The Agreement specifies consequences in the event of certain types of

breaches.

40. In addition to binding Signatory Defendants, the Agreement states its terms

bind Signatory Defendants’ affiliated parties.

41. The Agreement was signed by Defendant Bost on behalf of Signatory

Defendants.

42. On information and belief, Defendant WAB #13, LLC was formed at the

direction of Defendant Bost days before Defendant Bost signed the Agreement on behalf

of Signatory Defendants, and its formation was not disclosed to Whataburger.

43. Defendants represent WAB #13, LLC as part of a single “small, family

owned, fast paced business” founded in 1969, along with Signatory Defendants.

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 F. Defendants’ Breach of the Agreement

44. Defendants have used and continue to use their What-A-Burger #13 Mark in

connection with their food trucks in ways that were not allowed under the Agreement.

45. Defendants’ use of the What-A-Burger #13 Mark in connection with their

food trucks in ways not allowed under the Agreement constitute one or more breaches of

the Agreement.

46. Defendant Bost’s formation of Defendant WAB #13, LLC days before

signing the Agreement was an apparent attempt to circumvent the purpose and intention of

Signatory Defendants’ deal with Whataburger.

47. Whataburger contacted Defendants on April 9, 2024 to notify Defendants of

at least four occasions in which Defendants’ use was in violation of the Agreement.

48. Defendants failed to cure their breaches of the Agreement within any time

allowed under the Agreement.

49. Defendants have continued to violate the Agreement after multiple notices

from Whataburger.

50. Under the terms of the Agreement, Defendants’ repeated and uncured

breaches of the Agreement triggered the automatic remedies and consequences specified

in the Agreement.

51. Under the terms of the Agreement, Defendants’ repeated and uncured

breaches of the Agreement caused the Agreement to automatically terminate by its own

terms.

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 52. Defendants agreed that, upon termination of the Agreement, they would

immediately cease all use of the What-A-Burger #13 Mark for any purpose.

53. Defendants continued to use the What-A-Burger #13 Mark after termination

of the Agreement, and such continued use constitutes additional breaches of the

Agreement.

G. Effects of Defendants’ Unauthorized Use of the What-A-Burger #13

Mark

54. Defendants’ continued and ongoing use of the What-A-Burger #13 Mark is

without authorization, either under the Agreement or otherwise.

55. Defendants’ unauthorized use of the What-A-Burger #13 Mark is likely to

cause confusion, to cause mistake, or to deceive customers and potential customers of the

parties as to some affiliation, connection, or association of Defendants’ business with

Whataburger, or as to the origin, sponsorship, or approval of Defendants’ goods or services.

56. Defendants’ unauthorized use of the What-A-Burger #13 Mark falsely

indicates to the purchasing public that Defendants, their business, and their services

originate with Whataburger; or are affiliated or associated with Whataburger; or are

sponsored, endorsed, or approved by Whataburger; or are otherwise related to Whataburger

or its services.

57. Defendants’ unauthorized use of the What-A-Burger #13 Mark falsely

designates the origin of its products and services and falsely and misleadingly describes

and represents facts with respect to Defendants and their products and services.

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 58. Defendants’ unauthorized use of the What-A-Burger #13 Mark enables

Defendants to trade on and receive the benefit of goodwill built up at great labor and

expense by Whataburger over many years and to gain acceptance for Defendants’ products

and services not solely on their own merits, but on the reputation and goodwill of

Whataburger, its WHATABURGER Mark, and Whataburger’s products and services.

59. Defendants’ unauthorized use of the What-A-Burger #13 Mark removes

from Whataburger the ability to control the nature and quality of products and services

provided under its WHATABURGER Mark and places the valuable reputation and

goodwill of Whataburger in the hands of Defendants, over whom Whataburger has no

control.

60. Defendants’ unauthorized use of the What-A-Burger #13 Mark causes

irreparable harm to Whataburger and to the public.

61. In addition to Signatory Defendants, Defendant WAB #13, LLC is liable to

Whataburger for all claims, including because it is an affiliated party to the Signatory

Defendants and commonly owned or controlled by Defendant Bost.

62. Defendant Bost is personally liable for the acts described herein, as he is an

affiliated party to the Signatory Defendants and has actively participated in the activities,

including acts constituting trademark infringement, that he has authorized and approved.

63. Unless these acts by Defendants are restrained by this Court, they will

continue, and they will continue to cause irreparable harm to Whataburger and to the public

for which there is no adequate remedy at law.

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 COUNT I: FEDERAL TRADEMARK INFRINGEMENT

64. Whataburger repeats the allegations above as if fully set forth herein.

65. Defendants’ acts complained of herein constitute infringement of

Whataburger’s federally registered WHATABURGER Mark in violation of 15 U.S.C. §

1114(1).

66. This is an exceptional case pursuant to 15 U.S.C. § 1117(a).

67. Defendants’ infringing conduct is likely to cause substantial injury to the

public and to Whataburger, and Whataburger is entitled to injunctive relief and to recover

damages, pursuant to 15 U.S.C. §§ 1114, 1116, and 1117.

COUNT II: FEDERAL UNFAIR COMPETITION

68. Whataburger repeats the allegations above as if fully set forth herein.

69. Defendants’ acts complained of herein constitute unfair competition in

violation of 15 U.S.C. § 1125(a).

70. Defendants’ actions are likely to cause confusion and mistake and to deceive

customers, potential customers, and the public as to the true affiliation, connection, or

association of Defendants and their products and services in violation of 15 U.S.C. §

1125(a)(1), and Whataburger is entitled to injunctive relief, and to recover damagesand

reasonable attorneys’ fees pursuant to 15 U.S.C. §§ 1116 and 1117.

COUNT III: BREACH OF CONTRACT

71. Whataburger repeats the allegations above as if fully set forth herein.

Defendants’ acts complained of herein constitute breach of contract in violation of North

Carolina common law.

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 72. As a direct and proximate result of Defendants’ breach of the Agreement,

Whataburger has suffered damages in amount to be proven at trial, together with interest

from the date of the breach.

COUNT IV: UNFAIR AND DECEPTIVE TRADE PRACTICES

73. Whataburger repeats the allegations above as if fully set forth herein.

74. Defendants have and are engaged in acts affecting commerce and business

activities in the state of North Carolina and constituting unfair business practices in

violation of the North Carolina Unfair Business Practices Act, N.C. Gen. Stat. § 75-1.1.

75. Defendants’ acts complained of herein, including, but not limited to,

Defendants’ creation of a new corporate entity while negotiating the Agreement with

Whataburger in an apparent attempt to circumvent the purpose and intention of the

Agreements’ obligations on Signatory Defendants, constitute unfair or deceptive acts or

practices in or affecting commerce in violation of N.C. Gen. Stat. 75-1.1.

76. Defendants’ conduct has caused Whataburger irreparable injury. Unless

enjoined by the Court, Defendants will continue to cause Whataburger injury.

Whataburger is entitled to recover damages, costs and reasonable attorneys’ fees from

Defendants, pursuant to N.C.G.S. § 75-1.1, et seq.,

COUNT V: COMMON LAW UNFAIR COMPETITION

77. Whataburger repeats the allegations above as if fully set forth herein.

78. Defendants’ acts complained of herein constitute unfair competition in

violation of North Carolina common law.

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 DEMAND FOR RELIEF

WHEREFORE, Whataburger demands that:

(a) Defendants, their officers, agents, servants, employees, and attorneys, and

other persons who are in active concert or participation with any of them, be permanently

enjoined and restrained from using the WHAT-A-BURGER #13 Mark and any other mark

that is confusingly similar to Whataburger’s WHATABURGER Mark, and from any

attempt to retain any part of the goodwill misappropriated from Whataburger;

(b) Defendants be ordered to destroy any signage in violation of section (a)

above;

(c) Defendants be ordered to transfer to Whataburger the domain name

whataburger13.com and any other domain name Defendants own that includes

“Whataburger,” “What-a-Burger,” or any confusingly similar term;

(d) Defendants be ordered to file with this Court and to serve upon Whataburger,

within thirty (30) days after the entry and service on Defendants of an injunction, a report

in writing and under oath setting forth in detail the manner and form in which Defendants

have complied with the injunction;

(e) Whataburger recover all liquidated damages to which it is entitled under the

Agreement;

(f) Whataburger recover all damages it has sustained as a result of Defendants’

activities, and that said damages be trebled;

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 (g) An accounting be directed to determine Defendants’ profits resulting from

its activities, and that such profits be paid over to Whataburger, increased as the Court finds

to be just under the circumstances of this case;

(h) Whataburger recover its reasonable attorney fees;

(i) Whataburger recover its costs of this action and prejudgment and post-

judgment interest; and

(j) Whataburger recover such other relief as the Court may deem appropriate.

JURY DEMAND

Whataburger demands a jury trial in accordance with Federal Rule of Civil

Procedure 38(b).

Respectfully submitted this 11th day of June, 2024.

BELL, DAVIS & PITT

/s/ Kevin G. Williams

Kevin G. Williams
N.C. State Bar No. 25760
Carson D. Schneider
N.C. State Bar No. 59953
100 N. Cherry St.
Winston-Salem, NC 27101
Telephone: (336) 722-3700
[email protected]
[email protected]

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Case 3:24-cv-00547-MOC-DCK Document 1 Filed 06/11/24 Page 17 of 18
 Wendy C. Larson
Texas State Bar No. 24055820*
California State Bar No. 235037
Giulio E. Yaquinto
Texas State Bar No. 24107292*
PIRKEY BARBER PLLC
1801 East 6th Street, Suite 300
Austin, TX 78701
(512) 322-5200
(512 322-5201 (Fax)
([email protected])
([email protected])
*Special Appearance Under Local Rule
83.1(d) in process.

Attorneys for Plaintiff

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Case 3:24-cv-00547-MOC-DCK Document 1-1 Filed 06/11/24 Page 1 of 2
JS 44 Reverse (Rev. 03/24)

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statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related cases, if any. If there are related cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

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 EXHIBIT A

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Reg. No. 652,137 TRES AGUILAS ENTERPRISES LLC (TEXAS LIMITED LIABILITY COMPANY)
300 Concord Plaza Drive
Registered Sep. 24, 1957 San Antonio, TEXAS 78216

CLASS 46: HAMBURGER SANDWICH

Amended Dec. 04, 2018
FIRST USE 1-1-1950; IN COMMERCE 2-10-1953
U.S. Cl.: 46
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY
Trademark PARTICULAR FONT STYLE, SIZE OR COLOR

Principal Register SER. NO. 71-667,794, FILED 06-07-1954

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