
European Union has canceled McDonald’s trademark for Big Macs - lisper
https://slate.com/news-and-politics/2019/01/european-union-mcdonalds-big-mac-trademark-supermacs.html
======
JackuB
So I went in an read the actual ruling document
[https://www.courthousenews.com/wp-
content/uploads/2019/01/Bi...](https://www.courthousenews.com/wp-
content/uploads/2019/01/Big-Mac-euipo.pdf) (only 8 pages) and it pretty much
made sense for me (IANAL ofc).

McD’s lawyers screwed up, not submitting required evidence of actual use in
years 2011-2016. They printed out webpages with promo materials and a
wikipedia page (as article correctly points, “duh, we are McDonalds”) - not a
great proof of anything for any court. Then submitted some packaging of the
product.

Not any evidence that the product was actually sold and trademark used in
those five years - no sales figures, website traffic stats… As said, makes
sense to me

Edit: that said, still makes no sense why were they challenging the use of Big
Mac in the first place… _shrugs_

~~~
mattmanser
The Irish firm has 'mac' in their name.

 _Supermac’s said it can now expand in the United Kingdom and Europe. It said
it had never had a product called “Big Mac” but that McDonald’s had used the
similarity of the two names to block the Irish chain’s expansion._

[https://www.reuters.com/article/us-mcdonald-s-corp-
trademark...](https://www.reuters.com/article/us-mcdonald-s-corp-trademark-
supermacs/mcdonalds-loses-big-mac-trademark-case-to-irish-chain-supermacs-
idUSKCN1P92JA)

From the other articles I've seen about this the implication is that the
judgement was probably heavily influenced by McDonald's own anti-competitive
shenanigans of trademarking names of competitors products:

 _The US chain had also trademarked the term “SnackBox,” an offering by
Supermac 's that McDonald’s does not offer._

[https://www.irishcentral.com/culture/food-drink/supermacs-
mc...](https://www.irishcentral.com/culture/food-drink/supermacs-mcdonalds-
big-mac-trademark)

~~~
philliphaydon
Ah I initially got confused because I thought supermac was some bigger Big Mac
I had not heard of and went to Google. Disappointed now.

------
Someone1234
This article is a bad faith attempt at reporting this story. Here's a previous
hacker news thread which links to a less inflammatory article:

[https://news.ycombinator.com/item?id=18914054](https://news.ycombinator.com/item?id=18914054)

~~~
freedomben
Thanks for the link. There is a good comment there from purple_ducks:

> _What 's more ridiculous is McDonalds trademarked the name of a competitors
> (arguably) flagship product - which they(McD) never used:_

That definitely doesn't give an impression of a McDonalds who is acting in
good faith. Not that that justifies the EU (two wrongs don't make a right or
something like that), but it does make McDs a little less of a sympathetic
figure.

~~~
lisper
To be fair, the article does note this in the second to last paragraph:

"McDonald’s ... had also been applying for trademarks on Supermac’s menu
items."

But this was not intended to be a "fair and balanced" article, it was intended
to focus on a particular aspect of the story.

~~~
freedomben
Thanks, my bad, I totally missed that when I read the article.

~~~
lisper
No worries, it was pretty well buried. Easy to miss.

------
rgbrenner
EUIPO says McDonalds didn't prove they sold bigmacs in europe... The decision
says Mcdonalds submitted 3 affidavits, brochures, menus, packaging, and SALES
FIGURES of Big Macs in Europe... and the EUIPO said they don't believe any of
it.

Bizarre.

If actual sales aren't evidence of use, how do you prove this? If I had a
trademark in europe, I would be worried.

This has to be overturned on appeal.

[https://www.courthousenews.com/wp-
content/uploads/2019/01/Bi...](https://www.courthousenews.com/wp-
content/uploads/2019/01/Big-Mac-euipo.pdf)

~~~
1wd
McDonalds failed to provide sufficient data. They only provided tiny table of
numbers for the UK, France and Germany. E.g. <quote>...the total number of
products sold under the Mark between 2011 and 2016 was in excess of (units in
millions):

    
    
                2011 2012 2013 2014 2015 2016
        Big Mac 75   75   75   75   75   75
    

</quote>

The numbers fail to cover the entirety of the relevant time period (2012-2017
inclusive), region (all member states of the EU!) and goods (e.g. sandwiches).
They are also just self-proclaimed numbers with zero independent evidence to
back them up. The EUIPO notification spells this out clearly on page 4.

Sure, McDonalds should appeal and will probably overturn this, but not because
the EUIPO made a mistake, but because McDonalds's lazy tactic to appeal to its
marketing material. (After starting all this to bully a tiny competitor to
keep them from expanding in the EU.)

~~~
repolfx
How was this lazy or the EU's ruling in any way sane or sensible at all?

Do the people who work at EUIPO ever walk down a city street? Do they live in
the real world at all? Why did they even ask McDonald to submit _ANY_ proof
that they sell a product called a Big Mac when there has been saturation level
coverage of the entire fast food market with this product brand for ... well,
I'm pretty sure I don't remember a time when the Big Mac did not exist. So at
least as long as I've been alive.

This appears to be a classic case of Kafka-esque bureaucracy, almost certainly
politically motivated. No reasonable person would demand proof that McDonalds
has a product called a Big Mac because if they've somehow lived in a cave for
decades they could just walk down the street and verify it with their own
eyes. The fact the the EU not only demanded this, but then rejected actual
sales figures, marketing brochures and more as evidence, strongly suggests
they wanted to whack McDonalds and nothing they could have submitted would
have worked.

~~~
oliwarner
> Kafka-esque bureaucracy

Is it? They seem to be holding McDonalds to _the same evidenciary standards as
anybody else_.

That's the opposite of Kafkaesque bureaucracies, who make shit up as they
like. They were just being consistent.

~~~
repolfx
Hardly - this case appears to revolve around the decision that Wikipedia isn't
an "independent source". That can be argued both ways. Wikipedia isn't owned
by McDonalds. They probably didn't write the pages on it. I'm sure the lawyers
thought that whoever they were dealing with was just a fussy box ticker and
this would be sufficient to tick the box.

Now the correct decision is clearly that McDonalds do sell a product called
the Big Mac. That is a matter of fact. If EUIPO managed to conclude that this
is in doubt, _it 's their system for determining facts that is wrong_, not
reality.

Whoever made this call at EUIPO could easily have accepted the submitted
documents as evidence that McDonalds make a product called the Big Mac. They
could have worked to ensure this outcome didn't happen. That they didn't do so
indicates at best severe dysfunction, at worst some ulterior motive.

~~~
oliwarner
The rules are rather simple and constant. The burden of proof is on the EUTM
holder. Easy.

McDonalds knew this, they knew what was expected, and they messed it up.

~~~
repolfx
The rules are clearly not simple. If they were, McDonalds' team of lawyers
wouldn't have been tripped up by them, and in particular if the rules were
simple and constant then it'd have been clear what sources would count as
independent evidence.

Regardless, expecting employees of companies to be perfect in every way and
terminating something as valuable as the Big Mac trademark if they aren't is
just bad government. People make mistakes, doubly so if the rules are badly
written or being maliciously enforced.

Overall what I see is a near constant stream of attacks on American businesses
by the EU, usually via impossibly vague or absurdly written rules. The EU
claims to be based on a system of laws but it sure doesn't look like it when
you see how things play out in reality.

~~~
oliwarner
I don't think they tripped over the complexity here, they tripped over their
hubris.

They thought their client's fame was enough to make a case, and didn't put in
the leg work to defend it. As I've said a couple of times now it's the law
(for _every_ EUTM holder) that you have to absolutely defend your eligibility.
As it should be. TMs are a restriction on other people's freedoms.

Should also point out that _this was a contestable decision_. They (or, more
likely, their successors) can probably prove everything that needs to be
proven And using better sources than Wikipedia. They'll earn back their mark
registration.

[https://en.wikipedia.org/wiki/Wikipedia:Wikipedia_is_not_a_r...](https://en.wikipedia.org/wiki/Wikipedia:Wikipedia_is_not_a_reliable_source)

There certainly are laws that are protectionist, and have been written with
American companies in mind, not because those companies are American, but
because those companies are exploiting EU citizens in [what they feel to be]
unfair ways. Monopolies, data sharing, etc. The fines and lawsuits that come
off the back of these aren't on-the-spot instances either. The laws are
written in an open process. They're debated for years. These companies get
warnings. And GDPR lawsuits affect organisations on both sides of the pond.

------
emiliobumachar
" In other words, it doesn’t even matter if everyone knows that McDonald’s
sells burgers called Big Macs: There are ways to prove it, and McDonald’s
didn’t bother. Don’t tell us, show us. There are rules, Ronald, and you will
follow them."

I can see the logic behind that. If Uncle Bill's Bait Shop's printout is not
good enough, should McDonald's menu be?

~~~
sjwright
I can't see the logic. McDonald's submitted multiple affidavits, brochures,
menus, packaging and actual sales figures. What else could they possibly do to
prove a trademark is being used?

If that's not enough to prove the use of a trademark, then the value of
registering a trademark in Europe has plummeted to zero.

~~~
TrolTure
I think they require some 'independent' source of information, like news
articles. I'm quite surprised by the comments on this article. McDonald's
didn't present their case properly while that should have been easy. Seems the
onus is on them, regardless they still have their appeal.

~~~
sjwright
They provided an independent source of information. You say it should have
been easy yet nobody has been able to articulate exactly what they should have
done. It's not like the lawyers were being lazy; the information they did
supply was quite detailed and would have taken substantial effort to collate.

------
pergadad
Here's a better link from a collective of European IP lawyers. The point is
that McDonald's was assuming it would be treated differently than any smaller
company, and also that the Big Mac trademark might have been too broad to
begin with, but this was not the decisive factor.

[http://ipkitten.blogspot.com/2019/01/euipo-cancels-
mcdonalds...](http://ipkitten.blogspot.com/2019/01/euipo-cancels-mcdonalds-
big-mac-trade.html?m=1)

------
djaychela
Am I the only person who sees privacy pages on sites like this - where they
say 'accept our conditions and cookies' and there seems to quick way to make
settings that you're happy with - and then presses the back button, adding
that domain to an internal list of sites I won't visit again? Any time I see
any Oath-owned domain, I know that it'll be difficult/impossible to set what I
want, so I don't even bother any more.

~~~
dmitriid
Yup. Same here. I ended up reading comments on HN to see what the article was
about.

Under GDPR Slate's privacy banner is probably illegal, by the way, because it
doesn't provide a way to opt-out.

~~~
BerislavLopac
> I ended up reading comments on HN to see what the article was about.

I always do this first.

------
znpy
OTOH, you you are irish and your surname is McSomething (which naturally reads
as "mac-something") then you should be free to use that as branding. It's
literally who you are and who yo've been your whole life, and your ancestors
before you.

Which is basically what McDonald's creators did.

------
slededit
This ruling doesn't inspire a lot of confidence in fair treatment for foreign
companies in Europe. Its one thing if this was a default judgement because
McDonald's was boycotting the proceedings, but they filed a good faith
response.

If McDonald's is a bullying litigant - there are ways to deal with it that
don't bring the court itself into disrepute.

~~~
pergadad
In the contrary, it shows that both big and small companies are treated
equally. What would not have been enough for a less known company was also not
enough for Mcdonald's, shcih simply didn't make the effort to submit outside
evidence. The judgement was a bit legalistic in so far as common sense would
have said 'obviously McD sells Big Macs' but it's simply that they didn't
submit the right kind of evifencr. From other articles McD seemingly was
acting like a trademark bully in registering it's competitors' product names -
meaning they (presumably less known outside Ireland) had to provide objective
evidence. It's only right that the burden of proof is applied equally to all,
McD shot itself in the foot, first in causing this issuey first by filing
frivolous trademarks and trying to block a competitors entering the markety
causing the whole process, and then by not making the effort to submit the
right kind of evidence. No one else is to blame and this is a huge e
endorsement of the fairness of the EU trademark system.

They can appeal so it will all be a non-story in a while.

------
freedomben
I don't really see why the author thinks this is so funny. While I have no
love for giant corporations, I do have a strong distaste for government
pushing people around like that. There is nothing more frustrating than having
to spend a fortune on lawyers just to deal with the government, rather than
adding any value to the product.

I do wonder a bit, if this isn't meant to be a protectionist show move from
the EU demonstrating (particularly in the wake of upcoming brexit) that there
are benefits to staying in the EU... although I prefer to apply Hanlon's Razor
liberally.

~~~
emiliobumachar
McD was definitely not minding its own business when the government suddenly
showed up. From [https://m.independent.ie/business/irish/its-like-connacht-
wi...](https://m.independent.ie/business/irish/its-like-connacht-winning-
against-the-all-blacks-supermacs-ceo-responds-to-big-mac-trademark-success-
against-mcdonalds-37713005.html) :

McDonald’s previously hit Supermacs with a 41-page objection against its plans
to use the Supermac’s name in Europe stating that it would "take unfair
advantage of the distinctive character and repute" of trademarks previous won
by the global restaurant giant.

The US firm partly based its objection on already secured trademarks for its
products such as the ‘Big Mac’ and ‘Chicken McNuggets’, claiming introducing
Supermac’s into the market would cause confusion.

~~~
sjwright
Even if McDonald's were being total dicks about Supermac's, the remedy
shouldn't be for the Government to act like a petulant child.

~~~
pergadad
It's not the government. It's an independent agency that follows it's
procedures correctly no matter whether it's a mom&pop shop or a global giant.
McD caused the whole issue and then didn't bother submitting the right kind of
evidence.

~~~
sjwright
What was the right kind of evidence?

~~~
josefx
Seems like they submittet proof that they used the trademark in marketing
materials, but no independent proof that they actually managed to sell even a
single BigMac commercially.

~~~
sjwright
They provided detailed sales numbers.

~~~
vertex-four
They provided the number “75” for each year with nothing to back it up.

------
BuckRogers
I have no opinion on Brexit, but I imagine this will shift more corporate
resources out of the EU and into the UK. For the stability aspect alone.
Business tends to hate uncertainty as do investors and this seems rather
insane.

~~~
FranzFerdiNaN
No it wont. Because you don’t understand the issue, you didn’t bother reading
what happened. You just came here to shit on the EU for no reason but your own
biases which you thought you saw confirmed in the headline.

What happened is something that is actually causing stability because a huge
multinational was prevented from bullying a new upstart company.

~~~
repolfx
No, OP is right. This isn't stability. By "stability" people mean government
decisions are predictable and make sense, not that tiny EU companies can
create big problems for major corporations by exploiting the bureaucracy.

What will CEOs of large American companies think when looking at this ruling?
They will think the following:

 _" Everyone knows McDonalds makes a product called Big Mac. It's their
primary burger product and has been a stable brand for decades. Europeans know
this. I've been to Europe and eaten a Big Mac myself. Their usage of this
brand should not have been in question to start with. Why was it in dispute?
Then their lawyers submitted lots of documentation to satisfy the bureaucratic
box tickers, and apparently that still wasn't enough. If a brand as big as
McDonalds can't successfully keep their primary product trademarked in the EU,
what chance do I have? Maybe I'll think twice before prioritising these
markets."_

~~~
BuckRogers
Both FranzFerdiNaN and phatfish below weren't able to infer or comprehend what
form of stability I was referring to. It's absolutely laughable, outright, to
consider that I meant the EU or the nations that it consists of are
"unstable". I don't care about the UK or EU, this is just an objective
analysis of business realities.

It's the political expectations that matter. Threatening something as known as
the Big Mac is begging for even worse parasitical behavior on the behalf of
corporations. It's not going to encourage any investment into EU boundaries,
other than what's required to siphon money out. It's the same thing as Trump
disrupting trade arrangements with China. There's nothing offensive or
aggressive about these observations unless the reader is defensive and has a
bone to pick on their part.

