Initial Fallout From McDonald's Losing Its EU 'Big Mac' Trademark Is Mockery From Burger King

from the mac-attack dept

While trolling online is something we generally have to suffer through rather than enjoy, I, for one, am absolutely here for the brand on brand trolling that occasionally sparks so much fun. Especially when done cleverly, this business on business violence is absolutely delicious. I was therefore very much delighted to learn that the initial fallout after McDonald’s losing its trademark rights to the “Big Mac” in the EU is that some European branches of Burger King are delighting in rubbing McDonald’s nose in it.

Burger King’s Swedish operation recently revamped menus to poke fun at McDonald’s loss. Under the header Not Big Mac’s (sic), the sign listed meal options like “Burger Big Mac Wished It Was”, “Like a Big Mac, But Actually Big” and “Big Mac-ish But Flame-Grilled of Course”.

The chain released a video showing customers tentatively ordering from among the unusual choices, while a staff member appears unfazed as he calls out for Anything But a Big Mac.

And here is the video.

All fun aside, there are a couple of things to notice in all of this. First, it’s likely that everything Burger King did with this campaign ought to be considered Fair Use even if McDonald’s had never lost its trademark. After all, the entire point in calling out the “Big Mac” name in all of this is squarely to differentiate it from Burger King products. And, of course, there’s roughly zero chance of anyone in the public being confused in any way here.

Separately, this again calls to mind our mantra that content is advertising and advertising is content. The reason this campaign is a success goes beyond watching one giant fast food company mock another. Instead, this works because Burger King is clearly having so much fun with it. And it’s having that fun in a way that’s approachable, snarky, and quite funny. That’s all advertising gold, in that it both grabs attention and generates positive reactions with the public, all while messaging a positive difference between Burger King and McDonald’s.

So, if the primary fallout from a giant company losing its trademark is this kind of fun, I’m very much here for it.

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Companies: burger king, mcdonald's

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Comments on “Initial Fallout From McDonald's Losing Its EU 'Big Mac' Trademark Is Mockery From Burger King”

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34 Comments
Daydream says:

Wait, so McDonald’s doesn’t have a trademark on ‘Big Mac’ in the EU anymore, supposedly because they couldn’t prove that they were genuinely using the term over the past five years…

And Burger King’s response is to market a line of ‘like Big Macs but better’, that relies on their customers having at least a passing knowledge of the burger in question and the chain that sells it…

Does anyone else see something wrong here?

MDT (profile) says:

Re: Not full story

Only if you don’t look at the entire story. Basically, McDonalds didn’t really put in much evidence, I think they were so sure they’d win, they lobbed it over with minimal effort. They sent in some pictures of promotional material, a few website print outs, and some affidavits from the company hoy paloy. Basically, they didn’t do anything showing consumers knew it.

It also didn’t help that they had basically gone in an trademarked ‘SnackBox’, which happened to be the best selling Supermac’s menu item, but never sold a single item in any store in the EU called a ‘SnackBox’. It’s likely the EU officials disliked this little bit of McBullying, and since McD’s basically phoned it in (on a rotary dial princess phone likely), they stripped the marks.

McD’s can appeal, and probably will.

BernardoVerda (profile) says:

Re: Re: Not full story

And considering how this whole thing started with McDonalds screwing over Supermacs with a needless bit of trademark-bullying — theoretically over the possibility that Supermacs might conceivably someday sell something called a Big Mac (but probably just to prevent Supermacs from expanding into the rest of Europe) — MacDonalds really should have been more careful to dot their ‘i’s and cross their ‘t’s.

Eldakka (profile) says:

Re: Re:

Courts rule based on evidence presented before a court.

If, as apparently in this case, the side defending their mark doesn’t actually produce the relevant evidence before a court – even if it does exist – the court will rule against them. They were (apparently) too lazy to present the appropriate evidence to the court. They assumed they’d win by just turning up and saying "we are McDonalds, you know who we are, therefore we don’t need to produce any stnkin’ evidence". Therefore it is a case of McDonalds shooting itself in the foot. The plaintiff’s trying to cancel the mark didn’t really so much win it, as McDonalds actively lost it through their own (in)actions.

Daydream says:

Re: Re: Re:

But if it’s a trademark dispute, isn’t "You know who we are" a valid argument? Presenting evidence that people are familiar with McDonald’s and that they associate ‘Big Mac’ with the McDonald’s burger? Moreso than associating it with a certain My Little Pony?

…Also, what happened to the video? I can’t view it anymore.

PaulT (profile) says:

Re: Re: Re: Re:

"Presenting evidence"

That appears to be the step they messed up, hence the court coming to a silly-seeming ruling because they could only rule based on what was presented. The result seems dumb, but that’s the way you prevent judges bringing their own biases from outside the courtroom into the case.

The judge may well have stopped by for a Big Mac on the way to the hearing, but if the evidence that they were well-known burgers wasn’t in the court, the judge couldn’t bring that into the equation.

Dan (profile) says:

Re: Re: Re:2 Re:

There’s also (in the US, at least, though we derive our legal system from England) the concept of "judicial notice", where the court can accept without the presentation of evidence such propositions as that the sky is blue, the sun rises in the east, and February 4, 2019, was a Monday. That alone should suffice to demonstrate that the Big Mac is a well-known sandwich sold by McDonald’s. But even if judicial notice alone weren’t enough, the sales figures presented should have done the job.

PaulT (profile) says:

Re: Re: Re:3 Re:

"That alone should suffice to demonstrate that the Big Mac is a well-known sandwich sold by McDonald’s. But even if judicial notice alone weren’t enough, the sales figures presented should have done the job."

But, McDonalds also sell things called hamburgers, for which they do not hold a trademark AFAIK. Them saying "we sell a lot of hamburgers" should not (and I believe would not) be enough for them to claim the trademark without further evidence that they are associated solely with the chain.

Anonymous Coward says:

Re: Re: U.S. centric views

Even then, though, negative advertising is not a trademark issue. Whether something is "fair use" of a trademark and whether something is negative advertising are independent judgements, any use of a trademark could be fair use while running afoul of negative advertising laws (referring to big macs during an advertisement bashing McDonald’s) just as something could not be trademark fair use while not running afoul of negative advertising (such as Burger King claiming to sell big macs).

Anyway, defenses in Sweden appear to consist of the following types of "fair use:"

  1. Infringement was not conducted in the course of trade or
  2. the use has not adversely affected any function of the trademark or
  3. no likelihood of confusion exists
Ninja (profile) says:

The issue with your fair use paragraph is that while a company as big as Burger King can deal with any bullying from trademark disputes and go ahead and poke fun at the rival, a smaller one won’t find the lawyers bill as entertaining. Even if you make it so loses foot the bill it would be too late. In a fair, just world the defendant fees would be taken care by the government and then the bill would be handed to the losing part after due process follows its course.

One can dream no?

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