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Does it not deliver what the picture on the menu board promises? Burger King's Whopper

Photo: Justin Sullivan / Getty Images

A U.S. judge has denied Burger King's motion to dismiss a lawsuit alleging that the company defrauded hungry customers by making its Whopper burger appear bigger than it actually is.

U.S. District Judge Roy Altman said in Miami that Burger King had to defend itself against the allegation that the display of the Whopper on the menu boards in stores misled customers and thus constituted a breach of contract.

In a class-action lawsuit, customers accuse Burger King of depicting burgers with ingredients that "protrude beyond the bun," giving the impression that the burgers are 35 percent larger and contain more than twice as much meat as the chain actually serves.

Burger King replied that it was not obligated to sell burgers that looked "exactly like the picture," but the judge ruled that it was now up to the jury to "tell us what reasonable people think."

McDonald's, Taco Bell and Wendy's also sued

However, the judge dismissed charges based on television and online advertising, noting that there was no case in which Burger King promised a "size" or a "patty weight" and then failed to deliver.

Burger King denies all allegations. "The plaintiffs' allegations are false," the company said in a statement.

Fast-food chains McDonald's and Wendy's are also defending themselves against a similar lawsuit in federal court in Brooklyn, New York. The plaintiff's lawyer cited Altman's statement to justify continuing the proceedings. Taco Bell was also sued last month for selling crunch wraps and Mexican pizzas that allegedly contain half as much filling as advertised.

Each lawsuit seeks damages of at least five million dollars.