What-A-Burger of Virginia v. Whataburger, Inc., 300 F. Supp. 2d 407 (E.D. Va. 2004)

Melvin J. Radin, Esquire, Norfolk, VA, Counsel for Plaintiffs.

Shepherd D. Wainger, Esquire, Kaufman & Canoles PC, Norfolk, VA, Hubert *408 A. Crouch, III, Esquire, Crouch & Inabnett, Dallas, TX, Counsel for Defendant.

REBECCA BEACH SMITH, District Judge.

In accordance with the Opinion of the United States Court of Appeals for the Fourth Circuit, this court DIRECTS entry of judgment in favor of Whataburger, Incorporated of Corpus Christi, Texas ("Texas WAB"), on its counterclaim for declaratory judgment. What-A-Burger of Va., Inc. v. Whataburger, Inc., 357 F.3d 441 (4th Cir. 2004). As previously determined by this court, Texas WAB is the rightful owner of the trademark WHATABURGER. Moreover, Texas WAB is entitled to the exclusive use of the trademark in Virginia. However, as Texas WAB acknowledged before the Fourth Circuit, and in accordance with that court's Opinion to this effect, this court FINDS there has been no infringement of defendant's mark by What-A-Burger of Virginia, Inc., Jack Branch, What-A-Burger of Newport News, Inc., and Paul Branch (collectively referred to by the circuit court as "Virginia W-A-B"), and GRANTS declaratory judgment to plaintiffs on their claim in this respect. See id.

The Clerk is DIRECTED to send a copy of this Final Order to counsel for the parties and to the United States Court of Appeals for the Fourth Circuit. Each party shall bear its/his own costs and attorney's fees. All matters at issue having been determined, the case is hereby closed and removed from this court's docket.

It is so ORDERED.