There's only one Burger King in this town


  • Photo 1 of 4

    Gene and Betty Hoots under their Burger King restaurant sign.

    - Jeremy Hobson

  • Photo 2 of 4

    Gene and Betty Hoots inside the Burger King

    - Jeremy Hobson

  • Photo 3 of 4

    The Burger King staff and menu

    - Jeremy Hobson

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    Marketplace's Jeremy Hobson does his research with a Hooter Burger.

    - Gene Hoots

Forty years ago today the song, "Judy in Disguise," was a hit tune, O.J. Simpson was being touted as the country's next big sports star, McDonald's was just starting to test-market the Big Mac, and Burger King was suing...Burger King.

Let me explain that last one.

Take Interstate 57 a couple hours south from Chicago, and all of a sudden, you'll reach a 40 mile stretch without a single Burger King. Not one. The reason is right in the center of Mattoon, population 18,000.

It's a little mom-and-pop shop called Burger King, but it's not owned by the Burger King Corporation, and it's been here for 50 years.

VIEW A SLIDESHOW OF THE ORIGINAL "BURGER KING" IN MATTOON, ILLINOIS.

Gene and Betty Hoots own the place. It started out as an ice cream store called Frigid Queen. When they expanded into the building next door in the mid-50s, and started selling burgers, they came up with the name "Burger King."
Gene, who is now 80, recalls how the name was chosen.

"Frigid Queen, that's what the ice cream place is called. Why don't you call it the Hot King? I said no, I don't think that would go over in Mattoon," Says Gene Hoots. "But Betty says, 'How about Frigid Queen says cold, how about Burger King says hamburgers?'"

So they told their attorney to call the place Burger King -- and here's where they made their mistake. The attorney only registered the name in Illinois, so in the early 60s, some Florida businessmen snapped up the federal trademark, christening their growing chain of restaurants "Burger King: Home of the Whopper." When a Burger King opened in suburban Chicago, Gene Hoots heard about it and sued.

He ended up in Federal Court 40 years ago today.

"We got there about 20 minutes early with our new attorney who had just come to town, and at one minute till 10, the back door of the courthouse opened up, and here walks this guy in with, at that time, probably a $500 suit," Hoots said. "Behind him were six attorneys filing, and we were impressed."

So was the judge. He let Burger King Corporation keep the name. But Gene and Betty Hoots got something. The judge ruled that the Burger King Corporation couldn't put a restaurant within 20 miles of the Hoots' Burger King, a compromise more common than you might think, says Michael Froomkin, a University of Miami law professor. He says a fundamental principle of trademark law is fairness.

"We're trying to be fair to the little guy who went first," Froomkin said. "And we're trying to be fair to the big guy who went second and built something big, and did the paper work, which the little guy didn't do."

Froomkin says Gene Hoots should have objected immediately when the Florida Corporation got the federal trademark for Burger King. But, he notes: "How many people with small businesses are scanning the list of trademarks every week or every month?"

Burger King Corporation declined to comment for this story, but I was able to speak to one of the lawyers who represented the Burger King Corporation back in '67. And you may be surprised to hear that Clyde Meachum didn't really remember the case.

"My God, I'm 88 years old," he says. "I can't remember anything beyond last week!

When I told him about the case, he had this to say: "Why put the little guy out of business? He's not gonna be any competition. You know."

Wonder what would have happened if he had said that 40 years ago.

Meanwhile, back in Mattoon, I had to ask about one more thing -- Gene and Betty's famous double cheeseburger -- the Hooter Burger.

"Yes, the Hooter," Gene said. "My name is Hoots, so they called me Hooter. I think Betty came up with the idea. Why don't you call it Hooter?"

I asked him about the modern-day restaurant called Hooters. Could the Hoots be a trade trademark disaster?

"Yes, that's right," Gene Hoots replied. But they haven't heard anything from Hooters' lawyers yet.

VIEW A SLIDESHOW OF THE ORIGINAL "BURGER KING" IN MATTOON, ILLINOIS.

TEXT OF STORY

BOB MOON: We're about to reach back into the vault for a story you may have missed. Way back -- to November 27th, 1967. Forty years ago today. This song, "Judy in Disguise," was a hit tune. O.J. Simpson was being touted as the country's next big sports star. McDonald's was just starting to test-market the Big Mac and Burger King was suing Burger King.

Hold on. Stop the music!

Jeremy Hobson is about to explain, in this look back at the Burger King proprietors who wanted to, you might say, "have it their way."


JEREMY HOBSON: Take Interstate 57 a couple hours south from Chicago, and all of a sudden, you'll reach a 40 mile stretch without a single Burger King. Not one. The reason is right in the center of Mattoon, population 18,000.

BURGER KING EMPLOYEE: You're number six and we'll call your number when it's ready.

It's a little mom-and-pop shop called Burger King, but it's not owned by the Burger King Corporation, and it's been here for 50 years.

BURGER KING EMPLOYEE: Cheese, a small fry . . .

Gene and Betty Hoots own the place. It started out as an ice cream store called Frigid Queen. When they expanded into the building next door in the mid-50s, and started selling burgers, they came up with the name "Burger King."
Gene, who is now 80, recalls how the name was chosen.

GENE HOOTS: Frigid Queen, that's what the ice cream place is called. Why don't you call it the Hot King? I said no, I don't think that would go over in Mattoon. But Betty says, "How about Frigid Queen says cold, how about Burger King says hamburgers?"

So they told their attorney to call the place Burger King -- and here's where they made their mistake. The attorney only registered the name in Illinois, so in the early 60s, some Florida businessmen snapped up the federal trademark, christening their growing chain of restaurants "Burger King: Home of the Whopper." When a Burger King opened in suburban Chicago, Gene Hoots heard about it and sued.

He ended up in Federal Court 40 years ago today.

HOOTS: We got there about 20 minutes early with our new attorney who had just come to town, and at one minute till 10, the back door of the courthouse opened up, and here walks this guy in with, at that time, probably a $500 suit. Behind him were six attorneys filing, and we were impressed.

So was the judge. He let Burger King Corporation keep the name. But Gene and Betty Hoots got something. The judge ruled that the Burger King Corporation couldn't put a restaurant within 20 miles of the Hoots' Burger King, a compromise more common than you might think, says Michael Froomkin, a University of Miami law professor. He says a fundamental principle of trademark law is fairness.

MICHAEL FROOMKIN: We're trying to be fair to the little guy who went first, and we're trying to be fair to the big guy who went second and built something big, and did the paper work, which the little guy didn't do.

Froomkin says Gene Hoots should have objected immediately when the Florida Corporation got the federal trademark for Burger King. But . . .

FROOMKIN: How many people with small businesses are scanning the list of trademarks every week or every month?

Burger King Corporation declined to comment for this story, but I was able to speak to one of the lawyers who represented the Burger King Corporation back in '67. And you may be surprised to hear that Clyde Meachum didn't really remember the case.

CLYDE MEACHUM: My God, I'm 88 years old. I can't remember anything beyond last week!

When I told him about the case, he had this to say.

MEACHUM: Why put the little guy out of business? He's not gonna be any competition. You know.

Wonder what would have happened if he had said that 40 years ago.

BURGER KING EMPLOYEE: Two dogs . . .

Meanwhile, back in Mattoon, I had to ask about one more thing -- Gene and Betty's famous double cheeseburger -- the Hooter Burger.

GENE HOOTS: Yes, the Hooter. My name is Hoots, so they called me Hooter. I think Betty came up with the idea. Why don't you call it Hooter?

HOBSON: Now but, you know there's a restaurant called Hooters. I mean you guys are a trademark disaster area.

GENE HOOTS: Yes, that's right.

So far Gene and Betty Hoots haven't heard anything from Hooters' lawyers.

In Mattoon, Illinois, I'm Jeremy Hobson for Marketplace.

About the author

Jeremy Hobson is host of Marketplace Morning Report, where he looks at business news from a global perspective to prepare listeners for the day ahead.

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