On 28 August, global fast food giant McDonald’s Asia Pacific LLC (McDonald’s) launched Federal Court proceedings against long-time rival Hungry Jack’s Pty Ltd (Hungry Jack’s), alleging Hungry Jack’s has infringed its famous “Big Mac” trade mark with its lookalike burger, “Big Jack”.
Since 1973, McDonald’s has sold its “Big Mac” burgers across Australia and has “acquired a substantial and valuable reputation”.
Late last year, Hungry Jack’s filed a trade mark application for “Big Jack” and “Mega Jack”, which were accepted by the Australian Government’s IP Australia this February without any published opposition.[1] Hungry Jack’s has been promoting its new “Big Jack” burger since at least mid-July.
McDonald’s alleges:
- Hungry Jack’s Big Jack trade mark is “substantially identical with or deceptively similar” to its own Big Mac trade mark;
- a substantial number of consumers would be deceived into thinking there was a connection between its burger and the rival product;
- Hungry Jack’s “deliberately adopted or imitated” the “distinctive appearance or build” of the Big Mac trade mark; and
- Hungry Jack’s marketed the new burger in a similar way as the Big Mac with its well-known tagline of “two all-beef patties, special sauce, lettuce, cheese, pickles, onions – on a sesame seed bun”. Hungry Jack’s Bic Jack burger has been promoted as “two flame-grilled 100% Aussie beef patties, topped with melted cheese, special sauce, fresh lettuce, pickles and onions on a toasted sesame seed bun”.
McDonald’s also accuses Hungry Jack’s of acting in “bad faith” in applying for, and using, the trade marks when it was aware of McDonald’s existing trade marks, “Big Mac” and “Mega Mac”.
McDonald’s is seeking:
- a declaration that Hungry Jack’s infringed its Big Mac and Mega Mac trade marks;
- an injunction on Hungry Jack’s use of its new trade mark or any others “substantially identical or deceptively similar” to McDonald’s trade marks;
- an order cancelling the Big Jack and Mega Jack trade marks; and
- an order for the destruction of “all promotional materials, including physical and electronic brochures, menus, advertising and marketing materials, stationery, signage, packaging and documents” bearing the allegedly infringing Big Jack and Mega Jack trade marks.
Hungry Jack’s is yet to file a defence.
This will be a whopper dispute. Watch this space!
[1] Smart Company, Big Mac v Big Jack: McDonald’s drags Hungry Jacks to court in burger stoush (3 September 2020).
