In today’s Finshots, we tell you how McDonald’s lost the exclusive right to use the Big Mac trademark to Supermac’s.

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The Story

McDonald’s is a trademark bully!

And it isn’t us saying this. It’s what Supermac’s, Ireland’s largest fast-food chain, told the European Union Intellectual Property Office (EUIPO) or the EU’s trademark registration authority, while fighting to cancel the McDonald’s Big Mac trademark in the EU.

"How silly of Supermac’s!”, you might think. Big Mac is such a well-known trademark and everyone associates it with McDonald’s. So why would anyone want to fight to cancel it?

Well, if we were to put it in one word, we’d say ‘revenge’.

Yup! Close to a decade ago, Supermac’s wanted to register its name as a trademark in the EU, so that it could expand outside Ireland.

But McDonald’s decided to play spoilsport and threw a spanner in the works by opposing this request. Its argument was the clichéd “Hey, their name is too similar to our Big Mac burgers. So it could confuse our customers.”

And this meant that Supermac’s partially lost the case. It could keep its restaurant name but couldn’t use the Mac label to market the items on its menu.

It was sort of a predictable win too, simply because McDonald’s has been successful in winning the most bizarre trademark lawsuits globally in the past. Like its fight against P. C. Mallappa & Co., the Bengaluru based sanitaryware dealer.

In 1994 the American fast-food giant accused it of violating its internationally popular Golden M logo. And despite being in a completely different business field, it had to give up its logo in favour of McDonald’s. Courtesy: The Karnataka High Court felt that the similarities between the logos could confuse customers into thinking that P. C. Mallappa is somehow related to McDonald’s.

We know how oddly funny that sounds. But you can’t really challenge court orders unless you have deep pockets.

Supermac’s though, didn’t want to be like other small companies. It wanted to stand out from the crowd and stand up for other smaller entrepreneurs like itself. So it took on McDonald’s.

But here’s the thing. You can’t just fight a trademark lawsuit without proving a few basic things.

For instance, your trademark or logo shouldn’t be so similar that it confuses customers. Could consumers confuse a Supermac for a grand version of the Big Mac? Well, maybe.

Or you shouldn’t be dealing in the same kind of business. In Supermac’s case it obviously was, since it was a fast-food restaurant.

Even then, the type of items on your menu matter too. Say if a fast-food restaurant wants to use the word Mac or Mc to brand its Malaysian or Indian cuisine, which is starkly different from American food, it can. That’s what the Malaysian Federal Court decided when McDonald’s brought a trademark violation case against McCurry, a small Indian curry shop in Malaysia.

And finally, you have to make sure that you’ve registered your trademark before your opponent.

Now, if you look at all of these minute intricacies, it might seem like Supermac’s was obviously set to lose the case. But no. Supermac’s had done some great homework. Or rather some basic homework that probably no one else would think of.

It simply went digging to look for how genuinely McDonald’s was using the Big Mac trademark because that’s also an important factor in most global trademark laws. You can’t just register a trademark and go about claiming your exclusive right to use it unless you’ve used it enough.

Just look at how the Big Mac is marketed in India. The Big Mac essentially has a 100% beef meat patty. That’s the kind of image McDonald’s has portrayed for the Big Mac world over. But since most Indian regions are sensitive towards beef consumption, McDonald’s had to only restrict itself to other meats like chicken or mutton. And selling a non-beef version of it, but still calling it Big Mac wouldn’t make sense. That’s why McDonald’s calls this the Maharaja Mac in India.

So you could say that McDonald’s may not be genuinely using the Big Mac trademark in the country simply because it doesn’t have beef items on its menu.

Supermac’s stuck to a similar argument.

It told the court that McDonald’s wasn’t genuinely using its Big Mac trademark for its chicken burgers, drive through and take away services. That’s a clear violation of the EU’s trademark law which expects companies to continuously use a trademark for five years to prove that they’re genuinely using it. If not, another company can easily stand a chance to snatch that unused trademark.

And Supermac’s had a case in point to back this up too. Meat and poultry are considered different ingredients worldwide, and McDonald’s hadn’t stressed on the Chicken Big Mac enough in its menus across the EU. Even if it did, it didn’t have proof to show when it did, because sadly menus don’t have dates.

But yeah, McDonald’s could still use sales to prove its point. All it had to do was show how the trademark may have pumped up sales of its chicken burger. Fortunately, or unfortunately, it failed at that too.

And this meant that it couldn’t prove to the court that it was genuinely using the Big Mac trademark for its poultry products.

That folks, is how McDonald’s lost its exclusive right to the Big Mac in the EU.

So yeah, Supermac’s can call its chicken burgers Big Macs unless McDonald’s barges into a higher court with an appeal.

But until then, it will have to let Supermac’s bask in the glory of its vindictive victory, while the fast-food giant swallows its pride.

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