In September 2019, a Facebook page shared the following Tumblr screenshot, which contained the claim that fast food chain McDonald’s had lost control of their “Big Mac” European Union trademark and that Burger King had “trolled” them as a result:
At the top of the screenshot, which was shared with no additional information, text read:
catchymemes: McDonald’s loses EU trademark battle over the Big Mac. Burger King starts trolling them
Underneath an image of clearly Burger King-branded menu board, there was additional text:
The full story:
There is an Irish restaurant chain called Supermacs that has opnened around 100 stores in Ireland since 1978.
Recently, McDonald’s decided that this small restaurant chain that hasn’t even made it out of Ireland needed to be taught a lesson, and sued them on the basis that “Supermacs” infringes on the “Big Mac” brand name. Which is, of course, absolutely ridiculous.
McDonald’s ended up losing the case, because of course they did, they didn’t have a case to begin with. As a result, McDonald’s lost the rights to the term “Big Mac” across the entire European Union.
Which is why Burger King gets to do this with no legal repercussions.
Tumblr-based “Catchy Memes” shared part of the post on February 1 2019; one day later, a separate Tumblr user shared the “full story” portion of the post (archived here), and another version was shared to Imgur around the same time. An appended image of a purported Burger King menu board appeared on January 31 2019 in an Adweek piece about a Swedish restaurant:
Burger King Trolls McDonald’s Yet Again With an Entire Menu Mocking the Big Mac
Stockholm-based agency Ingo created a menu of “The Not Big Macs” at local BK locations just to troll McDonald’s for its legal defeat earlier [in January 2019] in a case against Irish fast food chain Supermac’s. In the case, the EU Intellectual Property Office determined that McDonald’s had not proven genuine use of the term “Big Mac” over five years leading up to the 2017 Supermac’s filing. McDonald’s had submitted web menus and promotional materials such as posters featuring the Big Mac, but in the end these were deemed insufficient by the EU regulatory body.
Adweek transcribed some of the menu items seen in the image:
• The Like a Big Mac, But Actually Big
• The Kind of Like a Big Mac, But Juicier and Tastier
• The Burger Big Mac Wished It Was
• The Anything But a Big Mac
• The Big Mac-ish But Flame Grilled of Course
The second of the two Tumblr posts claimed that “McDonald’s decided that this small restaurant chain [Supermacs] that hasn’t even made it out of Ireland needed to be taught a lesson, and sued them on the basis that ‘Supermacs’ infringes on the ‘Big Mac’ brand name.” Although plenty of January 2019 articles reported McDonald’s loss of the trademark, few adequately described the preceding litigation.
In February 2015, the Irish Post reported that Supermacs had then-new plans to move outside of Ireland for the first time. Supermacs’ plans to “move into the markets in Britain” appeared to trigger McDonald’s legal objection to the chain’s intended extended operations:
Irish fast food chain Supermacs has plans to move into the markets in Britain, Australia and the EU but McDonald’s is objecting to the use of the ‘Supermacs’ name in any international expansion … The fast food chain currently operates 103 branches across Ireland, north and south of the border. Plans to expand into the Australian market are already at an advanced stage.
McDonald’s released a statement saying that if Supermacs was allowed to operate under its current name, it would “take unfair advantage of the distinctive character” of the McDonald’s trademark.
That 2015 coverage of what appeared to be the origin of the dispute did not indicate that McDonald’s picked a fight with a small fry chain solely to teach them a lesson; rather, Supermacs’ decision to operate outside of Ireland triggered the litigation. In January 2016, Ireland’s The Journal reported that Supermacs was initially dealt “a blow” in the ongoing legal dispute:
The US company [McDonald’s], which operates about 34,000 outlets across the world, had filed a 41-page complaint with the EU’s Office for Harmonisation in the Internal Market (OHIM) about Supermac’s pending bid for a Europe-wide trademark.
In its decision, OHIM has partially upheld McDonald’s claim, rejecting Supermac’s trademark application for a number of items including food and drink services.
While Supermac’s was awarded its own trademark in Europe, it lost the part of the case which allowed it to sell its core products — including toys, food, drinks, coffee, ice-cream and meat.
McDonald’s had argued that there was a “likelihood of confusion” if Supermac’s was allowed a trademark in Europe, saying it had trademarked McFish, McToast, McCountry and other derivations of Mc.
In that initial ruling, examinations of signage, “confectionary items, hamburgers, ice-creams, condiments and coffee” led OHIM to conclude that “consumers may be confused as to whether Supermac’s is a new version of McDonald’s.” As of January 2016, Supermac’s Managing Director Pat McDonagh told reporters that the chain intended to pursue its market expansion plans.
In February 2017, Ireland’s Independent reported that Supermacs cited McDonald’s purportedly aggressive trademarking of the prefix “Mc” as inhibiting to family-owned and independent businesses. In response to OHIM’s previous decision, Supermac’s petitioned the European Union Property Office (EUIPO) to cancel specific McDonald’s trademarks:
[Supermac’s] has formally submitted a request to the European Union Property Office (EUIPO) to cancel the use of the Big Mac and Mc trademarks that McDonald’s has registered in certain classes.
Supermac’s asked the EU regulator that this take effect immediately on the basis that McDonald’s is engaged in “trademark bullying; registering brand names “which are simply stored away in a war chest to use against future competitors”.
“This means that if any McGrath, McCarthy or McDermott with a business idea uses their name in the title of that business or product the chances are McDonald’s already own the trademark and you can probably expect a knock on the door from them,” Supermac’s Managing Director McDonagh told independent.ie.
“McDonald’s has literally registered the McWorld. It is trying to make sure that every word in the English language belongs to them if there is prefix Mc or Mac put in front of it,” Mr McDonagh said.
“They have trademarked words like McKids, McFamily, McCountry, McWorld, McJob and McInternet in order to, over time, squeeze out smaller family based businesses,” he said.
In January 2019, EUIPO ruled on the Supermac’s claim McDonald’s had not put the phrase “big mac” to “genuine use,” the decision highlighted in the original Tumblr post:
In a judgment from the European Union Intellectual Property Office (EUIPO), it was found that McDonald’s had not proven genuine use of the contested trademark as a burger or a restaurant name.
The judgment opens the door for Supermac’s to expand into the UK and Europe, the group’s managing director and founder Pat McDonagh told The Irish Times.
While the company has trademark protection for the Supermac’s name in Ireland, extension of the trademark across Europe was contested by McDonald’s, he said.
“It [the EU patent office] has revoked the name that was originally granted in 1996 to McDonald’s,” Mr McDonagh noted.
The “big mac” was registered in Europe both as a food and under a category for restaurant names. This meant that McDonald’s could call a restaurant “big mac”. As a result of that, it was able to argue that if the Supermac’s name was successfully trademarked, it could cause confusion for customers.
In order to fight that ruling, Supermac’s had to formally submit a request to EUIPO to cancel use of the “big mac” trademark that McDonald’s had registered, arguing that it wasn’t being put to genuine use.
That decision “also had the unintended consequence of allowing Supermac’s to use the ‘big mac’ trademark on any food for sale, if it so wishes.” In additional coverage, McDonagh was quoted as saying:
They trademarked the SnackBox, which is one of Supermac’s most popular products, even though the product is not actually offered by them. The EU is basically saying either use it or lose it.
Within a few weeks, the “unintended consequences” involving the “big mac” name became apparent, as in the menu board at a Swedish Burger King seen in the original meme. The Tumblr post shared to Facebook in September 2019 was actually published in February of that year, and there were additional developments between the post and its appearance on Facebook.
In August 2019, EUIPO ruled McDonald’s failed to prove “genuine use of the ‘Mc’ prefix” on several trademarked items. While McDonald’s retained trademarks on some existing menu items, a “long list” of putative Mc-products was further revoked:
The [August 2019] EUIPO ruling revokes McDonald’s automatic trademark rights to the use of the term “Mc” on a long list of food products, drinks and restaurant services within the EU.
However, the EU body upheld the US firm’s right to own the “Mc” trademark on chicken nuggets and a range of its sandwich products including meat, fish, pork and chicken sandwiches … The EUIPO agreed with Supermac’s that there was no evidence of use of the contested trademark ‘Mc’ alone, but “only accompanied by further elements”.
In the Tumblr post shared to Facebook in September 2019, a user claimed McDonald’s pursued Supermac’s because they needed to be “taught a lesson” despite the latter chain having never “even made it out of Ireland.” That was inaccurate, as Supermac’s expansion plans outside of Ireland seemed to trigger McDonald’s attempts to enforce its trademark outside of Ireland specifically. Although Supermac’s initially was unable to successfully dispute McDonald’s, the chain later successfully weakened the “big mac” trademark. After the Tumblr post was published, Supermac’s legal action extended to Mc-prefixed items that McDonald’s trademarked but did not widely use, broadening their successful legal claim. The first decision in January 2019 led to the Swedish Burger King “trolling” seen in the meme.