Battle of the whoppers

MARION VAN DIJK/The Nelson Mail

LOTTA WHOPPER: How the burgers shape up and, right, Carole and Bernt Hofberg of Seabreeze City Takeaways.

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The whopper burger that's been on offer at a Nelson takeaway bar for 12 years is in danger of losing its name because international fast-food giant Burger King has taken offence.

Wellington law firm Kensington Swan, acting on behalf of Burger King, sent Seabreeze City Takeaways owners Carole and Bernt Hofberg a letter demanding they cease using the name. Having a whopper burger on the menu infringed Burger King's registered trademark rights and was likely to confuse customers, therefore causing a breach of the Fair Trading Act, Kensington Swan partner Charlotte Henley wrote.

"Our client is very concerned that consumers, on seeing your use of the whopper mark, will assume that it is part of our client's whopper brand or that your takeaway shop is otherwise associated with our client."

They have been given until 5pm on May 13 to remove the name before Burger King considers "further legal options" to protect its "valuable intellectual property rights".

The Hofbergs, who took over the business six months ago, say the burger was introduced by the store's original owner 12 years ago.

Burger King opened its first Nelson outlet in 2007.

"It was a surprise when this letter came," Mr Hofberg said. "I'd call it a shock – surprise is too nice," Mrs Hofberg said.

"If they had an issue, why didn't they come and talk to us?"

The letter was accompanied by photographs of their menu boards featuring the whopper burger.

Mr Hofberg said he was not even aware of the Burger King equivalent but bought one after receiving the letter to compare with his own product.

A Seabreeze Takeaways whopper burger costs $12 and has more ingredients including pineapple, egg and two bits of bacon. Burger King's whopper is $6.40.

Mrs Hofberg said they were yet to seek legal advice but expects they will drop the name even though it did not seem fair.

"It's kind of the principle of it all. Whopper is a word in the English language. Does this mean they can sue us for having a cheeseburger or hamburger?"

Seeking legal advice and changing all their menus would be costly. It was appalling that big American companies could put the squeeze on small local businesses in this way, Mrs Hofberg said.

Ms Henley declined to comment on how Seabreeze Takeaways had come to the attention of Burger King.

The company needed to take its intellectual property rights seriously even where small businesses were involved, she said.

- © Fairfax NZ News