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The Pickle between the Big Mac and the Big Jack

17 February 2021

The world-renowned fast-food restaurant McDonald's' first franchise was opened on April 15th, 1955 in Des Plaines, Illinois. Since then, the global foodservice retailer has franchised and operated a total of 38,695 restaurants.

In Australia, there is currently a public feud between McDonalds and their largest competitor, Hungry Jacks; which is basically Australia's version of Burger King. The dispute between the two international food franchises is over two competing burgers with a remarkable resemblance. The 'Big Mac' debuted in 1967 and has remained one of McDonald's most well-known items on the menu. While Hungry Jacks' burger 'Big Jack' only launched in July 2020.

This is not the first time that Hungry Jack's has fired up McDonald's grills. The Hungry Jack's franchise, Burger King, in Sweden, ran an advertisement campaign with taglines such as 'The Like a Big Mac But Actually Big' and 'The Burger Big Mac Wished It Was'. This was in response to McDonald's failing to prove their trademark had been breached by 'Supermac', a minor Irish burger chain in 2019.

McDonald's argues that its competitors use of the 'Big Jack' trademark causes confusion and deception for customers. However, the 'Big Jack' trademark lodgement application was unchallenged and was successfully registered in June 2020 despite the existing 'Big Mac' trademark. If only McDonalds had IP Partnership acting as their Trademark attorneys, because we would have certainly advised McDonalds to oppose the Trademark application lodged by Hungry Jacks Pty Ltd for "Big Jack" during the opposition period of the Australian Trademark application. To be fair to whoever McDonald's lawyers are, maybe they did advise McDonalds to oppose the mark and they chose not to oppose the mark? There is certainly a question as to how on earth Hungry Jacks' Trademark application went unchallenged.

In our opinion someone missed the Trademark Application lodged by Hungry Jacks and because McDonald's failed to lodge an opposition of the 'Big Jack' trademark, the Trademark achieved registration status in Australia! Hungry Jacks now own 'Big Jack' as a registered Trademark in Australia! 

The fat cats at McDonald's, at some point found out about the 'Big Jack' (likely while watching re-runs of Married at First Sight on TV and an ad for 'Big Jack' came on TV making them throw their McFlurrys at the screen in a fit of rage!!) and has now taken Hungry Jacks to court.

This is obviously put Hungry Jacks in a bit of a pickle, Ronald is accusing them of registering the trademark in bad faith; as stated by McDonald's defence Barrister, Edwina Whitby, [the Big Jack] "fell short of acceptable commercial standards and constitutes bad faith".

Hungry Jack's is no small fry, and certainly will not shy away from a fight against Ronald and his cronies, so HJ has hit back with a devious advertisement and sizzling defence statement, asserting that the two burgers are unique not only in appearance, and taste but components and magnitude. On behalf of Hungry Jack's, Sophie Goddard, Sydney Barrister, claimed that the 'Big Mac' does not have a trademark on how it looks and that all resemblances are due to the "common characteristics of hamburgers".  

Trademarks are designed to boost and protect business reputation. Hence why any infringement of trademarks must appear deceiving or trigger uncertainty. Therefore, the argument in which regular consumers of the restaurants would believe that the 'Big Jack' originated from its greatest rival, McDonald's would be difficult to contend.

The battle of the burgers is not over yet, the two companies are expected to return to court consequently for the fifth phase of the lawsuit.

It is safe to say that Ronald might turn a blind eye to the Hamburgular trying to steal a happy meal, but believe you me, if Ronald is of the opinion you have stolen the name of one of his burgers, he is going sue your buns (but we at IP Partnership simply cannot get over how Ronald made the mistake of failing to simply oppose registration of the trademark).

The takeaway, one of McDonald's largest competitors managed to sneak a Trademark across the line to registration status without anyone from McDonalds noticing in time to oppose the TM application. We have acted for a number of Clients in relation to Trademark oppositions against large publicly listed international corporations. It is a damn shame McDonalds didn't call us in time.

If you are serious about protecting your brand, please contact us and enquire about 'IP EYE'. We will watch the register for you each month in addition to checking social media and online databases to ensure no-one is attempting to use a brand name similar to yours.

In this instance, had McDonalds opposed the Trademark during the application process, McDonalds would have had this battle at IP Australia rather than in the Federal Court.

We will be watching intently to see if Ronald's arguments cut the mustard in Court.

Mia Vine