The ‘Big Mac’ is an iconic staple of the McDonalds brand, and one they are adamant to protect.
Recently, Hungry Jack’s has come under fire for their release of a burger titled the ‘Big Jack’, which consists of “two flame-grilled 100 per cent Aussie beef patties, topped with melted cheese, special sauce, fresh lettuce, pickles and onions on a toasted sesame seed bun”. This combination and description may seem familiar, likely due to it being almost identical to the Maccas favourite ‘Big Mac’.
The similarity is hard to miss, and certainly has not gone unnoticed by McDonalds, who filed an action against Hungry Jack’s in the Federal Court of Australia on 28 August 2020 challenging that decision. In Australia, McDonalds already holds several trademarks for ‘Big Mac’, covering both the burger itself and anything that could possibly be associated with it. Hungry Jack’s secured registration for the trademark ‘Big Jack’ in June this year in relation to their almost identical version of the burger.
It is understood McDonald’s believes Hungry Jack’s is ‘passing off’ the ‘Big Jack’ as a ‘Big Mac’, profiting off the success and reputation of McDonalds, deceiving the public and presenting misleading information that will negatively affect the McDonalds business. Under Australian consumer law it is illegal to act in any manner that could be deceptive or misleading to customers. The corporation also likely believes the trademarked ‘Big Jack’ is too similar to the ‘Big Mac’ trademarks.
Previously, the McDonalds corporation in Australia has had success in protecting their trademarks, preventing titles such as ‘McSalad’ and ‘McFresh’ being registered.
In Australia, it is likely Hungry Jack’s will argue their own reputation in the name ‘Jack’ will dispel any confusion as to the source of their product and the implication they have acted deceptively. McDonalds clearly do not agree. It will be interesting to see how McDonalds frame this argument.
It will be a very interesting case to follow, as the two fast food giants of Australia fight it out in court.
As an interesting side note, Hungry Jack’s is not called Burger King in Australia because by the time the American company decided to branch out internationally including within Australia in the 1970s, an Adelaide business had already registered the Burger King trade mark in 1962. Jack Cowin, still a major shareholder in Hungry Jack’s in Australia, became the Australian Master Franchise owner, and he selected “Hungry Jack’s” as one name from several options presented to him by Burger King in the US at the time. The fact his Christian name was Jack was a coincidence, although likely influenced his decision. In the 1990’s Burger King claimed Mr Cowin’s Hungry Jack’s business wasn’t opening enough stores each year and so started opening their own Burger King stores in Sydney, NSW.
Mr Cowin sued them, and won, with Burger King ceasing direct activities within Australia, securing Mr Cowin’s privately owned company as the sole Master Franchise owner, leading to the 400 plus Hungry Jack’s restaurants located around Australia today being under his company’s control.
If you have a need for any advice in relation to trade marks or other forms of intellectual property, as the only law firm in Toowoomba with a specialist intellectual property team, we can assist you.
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