McDonald’s Loses Trademark Suit In Australia Against Hungry Jack’s Over ‘Big Jack’ Burger

Three years ago we discussed an interesting trademark battle between McDonald's and Hungry Jack's in Australia. It's interesting for a number of reasons. For starters, Hungry Jack's is a part of Burger King, McDonald's chief rival globally, making this something of a proxy war. Second, this suit was filed on the heels of McDonald's losing its Big Mac" trademark in Europe after Supermacs got it canceled in expanding into the continent. And finally, to tie those two things together, this particularly dispute was over Hungry Jack's Big Jack" burger, which is designed similar to the Big Mac, save some differences that Hungry Jack touted specifically in its advertising of the sandwich.

Well, the results are in, and the Australian courts have decided that there is no trademark infringement here, largely because it doesn't see any real or potential customer confusion.

Justice Stephen Burnley, who presided over the case, found that the Big Jack was not deceptively similar to the Big Mac", and that the Big Mac's strong reputation made it unlikely consumers would be confused or deceived.

I am not persuaded that Hungry Jack's fashioned the name Big Jack for the purpose of misleading consumers," he said.

In addition to that, the marketing head for Hungry Jack's specifically pointed out that the whole point of the name wasn't to try to deceive customers into thinking there was some association with McDonald's, but actually the exact opposite. The name was chosen to poke McDonald's in the eye and play into the rivalry, which is material to secondary claims made by McDonald's that Hungry Jack's misled the public when specifically pointing out the differences between the Big Mac and the Big Jack.

In its suit, McDonald's also claimed that Hungry Jack's had misled consumers in a series of television adverts by claiming the Big Jack contained 25 per cent more Australian beef than the Big Mac.

After testing and weighing of the different burger patties by experts, the judge found Hungry Jack's burgers contained significantly less" than the 25 per cent additional beef advertised, and the company had breached consumer law through its marketing.

And it's likely that Hungry Jack's is going to be fined as a result of that misleading marketing. But what that also makes crystal clear is that the company was very specifically differentiating itself from McDonald's through that same marketing, not attempting to mislead the public per McDonald's first claim.

So, Hungry Jack's will get a slap on the wrist fine, but this certainly isn't trademark infringement according to the Australian courts.