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.

Filed Under: big mac, competition, eu, fair use, mockery, trademark
Companies: burger king, mcdonald's


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  • icon
    Gary (profile), 5 Feb 2019 @ 6:24pm

    Callout

    Just goes to show that Trolling, given the right context, is amusing.

    Calling out a bad trademark? Hilarious. Shouting at everyone that doesn't like copywrong maximalists? Not so funny. :)

    In the States, McD's has rolled out a "Bacon Big Mac" which is a very slight attempt an innovation.

    reply to this | link to this | view in chronology ]

  • identicon
    Zem, 5 Feb 2019 @ 8:44pm

    Just waiting on someone to list a Big Mac & Cheese

    reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 5 Feb 2019 @ 9:02pm

    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?

    reply to this | link to this | view in chronology ]

    • icon
      MDT (profile), 5 Feb 2019 @ 10:29pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Get off my cyber-lawn! (profile), 6 Feb 2019 @ 11:11am

        Re: Re: Not full story

        But if they are limited to the evidence (or lack thereof) provided in the original suit....I think their Big Mac is gonna cause them heartburn...like it does the rest of the public.

        reply to this | link to this | view in chronology ]

      • icon
        BernardoVerda (profile), 6 Feb 2019 @ 3:54pm

        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.

        reply to this | link to this | view in chronology ]

    • icon
      Eldakka (profile), 5 Feb 2019 @ 10:35pm

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Daydream, 6 Feb 2019 @ 12:24am

        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.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 6 Feb 2019 @ 1:24am

          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.

          reply to this | link to this | view in chronology ]

          • identicon
            Dan, 6 Feb 2019 @ 3:46am

            Re: Re: Re: 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.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 6 Feb 2019 @ 4:42am

              Re: Re: Re: Re: 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.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Feb 2019 @ 7:09pm

          Re: Re: Re:

          I think the alternative is far worse - since then if they could convince locally despite a lack of shred of evidence they could engage in outright 'theft' of trademarks through chutpzah - why yes everyone knows the Apple Golden Arches means they can sell big macs!

          reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 5 Feb 2019 @ 9:46pm

    Gotta love the "Big sMac!"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Feb 2019 @ 11:53pm

    RC Cola once poked fun at Coke and Pepsi by repeatedly bleeping their names out of a commercial until the last time the actress said their names, which weren't bleeped.

    I thought the other reason they didn't mention the competition by name was to avoid giving them free publicity.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2019 @ 12:34am

    And the the YouTube video has been taken down...

    reply to this | link to this | view in chronology ]

    • identicon
      David, 6 Feb 2019 @ 2:31am

      Re:

      Well, it's only in the EU that McDonalds lost the Big Mac trademark. On the other hand, takedowns are usually for copyright claims, aren't they? Not sure what the deal with trademarks would be.

      reply to this | link to this | view in chronology ]

    • icon
      wshuff (profile), 6 Feb 2019 @ 5:17am

      Re:

      Tomorrow we get to read the article about the bogus claims McD’s made to take down a Burger King video. And then a new video from Burger King poking run at that . . .

      reply to this | link to this | view in chronology ]

  • identicon
    David, 6 Feb 2019 @ 12:54am

    U.S. centric views

    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.

    Sweden is not subject to U.S. laws. It turns out they have their own.

    reply to this | link to this | view in chronology ]

    • icon
      frank87 (profile), 6 Feb 2019 @ 5:18am

      Re: U.S. centric views

      It's true. I'm no expert on Sweden (I had to check if it's EU, neighbor Norway isn't), but a lot of countries have laws against negative advertising (bashing competition).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Feb 2019 @ 7:58am

        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

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Feb 2019 @ 1:07pm

      Re: U.S. centric views

      When it comes to IP, Swedish courts have been known to kowtow to US corporations' interpretations: see the original BitTorrent case where the guys were arrested for a law that didn't exist yet at the behest of the RIAA and MPAA and then convicted for it after it was created.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2019 @ 3:22am

    If you must eat fast food burgers, Burger King is better than McDonald's, to be frank. Clowns are unappetizing at the best of times, nightmarish hell fiends at the worst of times

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Feb 2019 @ 4:55am

      Re:

      Supermarket White Castles are great if you don't mind the absence of a pickle.

      Don't really eat out much or if I do I get Chinese.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 6 Feb 2019 @ 4:56am

    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?

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 6 Feb 2019 @ 7:00am

      Re:

      It's true that a smaller competitor wouldn't have the resources to try this. Except now that BK has done it, it sets a precedent that others can follow with less risk.

      reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 6 Feb 2019 @ 8:22am

        Re: Re:

        Ah yes, in Europe. Fair use is an US construct. But even then, you can still succumb under the weight of the costs of defending yourself even if it is a sure win.

        reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 6 Feb 2019 @ 8:25am

        Re: Re:

        No, if anything, it increases the risk. McDonald's is going to be fuming over this whole mess while it works on an appeal, and will put it's full weight against the first smaller company to put a toe over the line to assert its dominance in the market. "Burger King might dare, but the rest of you are insects."

        reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 6 Feb 2019 @ 8:48am

    And now the video is down, with no explanation given...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2019 @ 9:05am

    Last time I was at a Micky-Ds I ordered an Eggahmuffin ... the blank stare upon that teenager's face was rather humorous.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2019 @ 11:34am

    Picture of the BK menu

    Taken from a Guardian news article, this picture shows how the BK menu items have been renamed to poke fun at the Big Mac trademark loss.

    reply to this | link to this | view in chronology ]

  • identicon
    Châu, 8 Feb 2019 @ 10:13pm

    Big Mac

    One project Steve Jobs create after sell first Macintosh 128k (before Apple push him out) have name Big Mac, powerful Macintosh workstation. I guess that project become Next Station.

    reply to this | link to this | view in chronology ]


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