Hungry Jack's is facing a concerted social media backlash after serving legals to a Central Coast burger joint over its use of the term Wambie Whopper. While the brand is unquestionably entitled to protect its IP, legal and brand experts believe the fallout could be costly. Sales in the region may also suffer after thousands of people signed a a petition pledging not to buy Hungry Jack's burgers until it drops the action.
The action emerged earlier this week. When Wamberal resident and long-time Wambie customer Matt Burke learned of the papers served to the take-away's owners, he started a Facebook page on Sunday night. The next day it had attracted 20,000 likes. It has since attracted thousands more and Hungry Jack's own Facebook page has been hijacked by people slamming the action as disproportionate.
Burke said he was spurred to action by “the innate unfairness of it... Wambie's is an old school milk bar” and he had grown up going there for the burgers, the pinball “and the Streetfighter arcade games”.
“It was a kick in the guts and the community responded based on that alone. [The shop] has built up two decades of goodwill, it's well-loved and then the big player comes in and says stop using our name. It raises questions of fairness and whether it is smart for the brand to do that in an age of social media,” Burke said.
While every brand is entitled to protect its IP, he said, “the power balance between the two is very large. It is over-reach.”
People on the Facebook page suggested Change.org and Burke started a petition. As of this morning, some 4,300 signatories have pledged not to buy Hungry Jack's burgers until the action is dropped.
Today the community has organised a “cash mob”, which, like a flash mob, involves a mass gathering. Only the group will all be buying Wambie Whoppers.
The shop owners have been instructed not to say anything on the issue by their lawyers. But Burke hopes that the protest will do the talking for them. He said he has been approached by documentary film makers and that the group has plans for a sustained protest.
He hoped the social media and traditional media coverage would have Hungry Jack's brand teams “hitting their heads and asking 'why are we doing this?' Legal teams need to be aware of how it reflects on the brand if they are seen to be bullies.”
The brand remains mute on the issue. Hungry Jack's declined to comment to AdNews on the legal wrangle, social media backlash or damage limitation. Hungry Jack's creative agency Clemenger BBDO could not be reached for comment.
Porter Novelli, which handles Hungry Jack's social account also declined to comment and directed enquires to the brand’s PR team at Wrights.
Virtually all the brand's posts on Facebook in the last two days have been besieged by comments attacking the chain on its treatment of Wambie Whoppers but Hungry Jack's has made no mention of the issue. It has yet to acknowledge the issue via its social channels.
The only statement it has issued has been to the Central Coast Gosford Express Advocate:
"The Hungry Jack's Whopper has been associated with great tasting flame-grilled burgers in Australia since 1971 and is only available from Hungry Jack's national network of more than 350 restaurants," a spokesman told the paper.
"Hungry Jack's is obliged to maintain rigorous standards to ensure that when customers order a Whopper they are guaranteed to receive the consistent, high quality burger that is only available at Hungry Jack's."
The social media backlash comes in the week the brand prepares to launch its first foray into Instagram.
Wambie Whoppers faces challenges in two parts – trademark infringement and under section 18 of the consumer protection act, against misleading advertising. Media and marketing lawyer Stephen von Muenster offered his general observations on the case.
He told AdNews Wambie Whoppers appears to have a legal defence against the claims and Hungry Jack's could in fact find itself in legal difficulties. If Wambie Whoppers has been using the term consistently for 20 years, it pre-dates the trademark for Whopper held since 1997 by Burger King Corporation in the US, of which Hungry Jack's Australia is a franchise.
Wambie Whoppers, which is an unregistered mark, could also begin legal proceedings against Hungry Jack's under section 129 of the trademark act, for making groundless threats of legal action.
Von Muenster also believes no reasonable consumer would be misled that Wambie Whopper and Hungry Jack's are part of the same business, or related, which means Hungry Jack's legal claims could also fail in that regard.
Hungry Jack's has more to lose through commercial reputation than it would gain through the legal rights, and is unlikely to be able to prove any commercial losses as a result of Wambie Whoppers. A similar example from earlier this year involved Sydney ice cream chain Gelato Messina, which was threatened with legal proceedings by Unilever after using the FMCG giant's trademark Gaytime as the name of one of its ice creams to celebrate gay and lesbian Mardi Gras.
Von Muenster said: “From my first observations, it looks like sabre-rattling on a misconceived threat that could end in legal liability for Hungry Jack's. I fully support a brand's right to protect their brand but there comes a time when companies have to exercise community discretion.”
“Going after the little guy in this kind of honest trading situation for a possible trademark infringement is not commercially sound. It makes them look like a corporate bully and it brings negative publicity."
Additional reporting by Nicole Parish.
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