McDonald’s made an unforced error at the European Union Intellectual Property Office, or EUIPO, and the blow came from a frequent adversary.
Supermacs is Ireland’s largest restaurant chain and chief rival to McDonald’s. The two have met in court numerous times, with McDonald’s losing twice in recent memory. In 2019, McDonald’s was defeated by an Irish hamburger place because McDonald’s failed to present sufficient evidence that its BIG MAC trademark was actually used in Ireland. Some practitioners suspected McDonald’s had rested on its laurels too much, essentially saying, “We are McDonald’s, of course we’re everywhere, and have huge sales.”
“Case T‑58/23” is a similar case from the EUIPO in which McDonald’s lost its exclusive EU rights to use BIG MAC in connection with chicken sandwiches. And again, it appears that for similarly self-inflicted reasons, McDonald’s unnecessarily lost a case it could have won.
McDonald’s had previously succeeded in front of the “Board of Appeals,” and then the applicant for a similar trademark appealed to the higher authority, which is the General Court of EUIPO. The action was really against the EUIPO decision, but McDonald’s appeared as an intervening party.
McDonald’s simply had to provide sales figures of its chicken sandwiches from 2012 to 2017, but the only proof that it provided was a single television commercial, and some kind of print advertisement whose provenance hadn’t even been established — because it relied on a handwritten note to show the date it was used, which said “2015.”
The court said those specimens were not evidence that the trademark was actually used in connection with chicken sandwiches. McDonald’s, as the intervenor, demonstrated extensive use of Big Mac, and an extensive use of McDonald’s, but it didn’t say how many chicken sandwiches they sold using the BIG MAC mark.
Frankly, the arrogance of this large company, that assumed what it had shown would be sufficient, failed upon closer scrutiny — just like it would for anyone else. In Europe, it seems, the law applies equally to everyone, whether it’s Big Mac or a former Big Cheese.
