McDonald’s has commenced proceedings in the Federal Court claiming that its competitor, Hungry Jack’s has infringed it’s ‘Big Mac’ trademark with a lookalike burger called the ‘Big Jack’.
The ‘Big Jack’ burger was trademarked by Hungry Jack’s earlier in the year. The Plaintiff, McDonald’s Asia Pacific, claims that the new burger promoted under the ‘Big Jack’ trademark is substantially identical with or deceptively similar to the ‘Big Mac’ trademark and that the ‘Big Mac’ trademark has acquired a substantial and valuable reputation in Australia since it registered its own trade mark back in 1973. McDonald’s seeks relief under section 44 of the Trade Marks Act 1995 including orders that the new trademark should be cancelled and or that Hungry Jack’s should be restrained from using its new trademark on several grounds including that it is likely to deceive or cause confusion. This could prove difficult for McDonald’s to demonstrate that the ‘Big Jack’ trademark is likely to deceive or confuse or that there is some connection with McDonald’s. One would not ordinarily go to a Hungry Jack’s fast food restaurant for a ‘Big Mac’ and vice versa.
McDonald’s further claims that its competitor has deliberately adopted or imitated the distinctive appearance or build of the Big Mac, its ingredients along with its well-known tagline of “two all-beef patties, special sauce, lettuce, cheese, pickles, onions – on a sesame seed bun”. While Hungry Jack’s describes its burger online 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.” [emphasis added].
Hungry Jack’s is yet to file a Defence in the proceedings. However, it remains to be seen whether the addition of half a dozen words in its tagline is sufficient to distinguish it from its rival ‘Big Mac’ tagline.
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