You may be surprised to find that a search of our story archives involving fast-food giant McDonald's returns pretty scant posts here at Techdirt. Regardless, the company is known to be quite protective on trademark matters, often times using the trademarks it holds to swat at legitimate competition, pretending at potential public confusion that doesn't really exist. Given the size of the company's legal war chest, these bullying efforts are typically successful.
But not always. One victim of this bullying was Supermacs, an Irish fast-food chain with an appropriately Irish name. Supermacs has for years wanted to expand throughout Europe, but was largely unable to due to McDonald's claiming that its trademark registration for "Big Mac", the name of its famous sandwich, meant that any attempt by Supermacs to expand into Europe would cause public confusion. This is typically where the story would end. Instead, Supermacs went on the offensive and decided to try to get McDonald's "Big Mac" trademark cancelled entirely so that it could no longer be wielded as a bully-stick. And, much to this writer's surprise, Supermacs won.
McDonald's Corp has lost its rights to the trademark "Big Mac" in a landmark European Union (EU) case ruling in favour of Ireland-based fast-food chain Supermac's, according to a decision by European regulators.
The judgment revoked McDonald's registration of the trademark, saying the world's largest fast-food chain had not proven genuine use of it over the five years prior to the case being lodged in 2017.
Whoops. So, how did this happen? Well, in large part it appears that the legal team for McDonald's largely phoned its work in, likely not even considering that it had any chance of losing. When the trademark office requested that McDonald's prove it was using its "Big Mac" trademark actively in commerce, the company's legal team offered up some website printouts and got a few people to write testimonials.
The EUIPO said the affidavits from McDonald's needed to be supported by other types of evidence, and that the websites and other promotional materials did not provide that support. From the website printouts "it could not be concluded whether, or how, a purchase could be made or an order could be placed", the EUIPO said.
"Even if the websites provided such an option, there is no information of a single order being placed."
In many respects, this is all a little crazy. McDonald's does indeed sell Big Macs in Europe. Why it couldn't be bothered to put forth some evidence of this beyond printouts of websites is beyond me.
— Sigh Hersh, Work in Progress (@Ugarles) January 17, 2019
Given that this again all stems from McDonald's wanting to pretend an Irish chain called Supermacs is confusing because of its Big Mac sandwich would cause confusion, even though Supermacs doesn't sell anything called a "Big Mac", makes it hard to feel all that sorry for McDonald's. Instead, it's easy to see this as a huge company tried to play bully then got lazy when called out on it, and now suddenly doesn't have its most famous trademark on the European continent.
Of course, this ruling is so crazy that at least one publication literally thought it couldn't be real and then had to retract it's report denying that McDonald's had lost the trademark: