Working here at Ogden Glazer + Schaefer, you get to hear about all the interesting legal battles that happen around the world. Here is one that I am surprised did not get shared with you.
[Note from Erin: This post was written by Carter, our high school assistant. He is not a lawyer. He is not well-versed in EU law. He doesn’t provide legal analysis, and you should not take it as legal advice. He does, however, have good insights and questions – that we will answer in later posts (e.g. famous marks, genericide, use in commerce, different jurisdictions, etc.). We wanted to share his post with you to show that trademarks are used every day by everyone – even high schoolers! A little knowledge can go a long way.]
Last Wednesday a European Union Court ruled that the request by Irish fast-food chain, Supermac’s, to partially revoke the BIG MAC trademark of fast-food juggernaut, McDonald’s. Supermac’s claimed that the trademark should be revoked, because on their rival’s website it defines its Big Mac as a hamburger made of two beef patties, cheese, lettuce, onions, pickles, and Big Mac Sauce; meaning that for any foods Supermac’s’ produces that does not include beef in it, could be marketed as a Big Mac. The General Court agreed and said “that McDonald’s has not proved that the contested mark has been put to genuine use as regards the goods ‘chicken sandwiches’, the goods ‘foods prepared from poultry products’ and the ‘services rendered or associated with operating restaurants and other establishments or facilities engaged in providing food and drink prepared for consumption and for drive-through facilities; preparation of carry-out foods’.”
Supermac’s called this victory a “David and Goliath” story, and felt the victory was not only for them, but for small business everywhere. McDonald’s spokesperson said, “The decision by the EU General Court does not affect our right to use the ‘Big Mac’ trademark. Our iconic Big Mac is loved by customers across Europe, and we are excited to proudly serve local communities, as we have done for decades.”
I find it interesting that something like this could ever happen. When I hear “Big Mac,” I immediately think of a McDonald’s burger. It makes me wonder if a similar request could be made in the United States to have their trademark pulled, possibly using the same argument of using McDonald’s’ own definition of a Big Mac from their website. It would be challenging because of the difference between American and European consumers, as well as the difference in economic power American companies have in the United States than they do in Europe.
Seeing a colossal company like McDonald’s have their trademark revoked (on the basis that McDonald’s had not made genuine use of it in the previous five years) of their biggest staple menu item on an entire continent is not something I thought I would ever hear about. When it comes to the “Big Mac” trademark, the EU Courts are not loving it.