In a cautionary tale, the ubiquitous Big Mac trade mark has been cancelled in Europe, ironically for non-use.
Last week's decision of the EU Intellectual Property Office, found that McDonald's had not sufficiently proved use of of its Big Mac trade mark.
In trade mark non-use cancellation proceedings it is up to the trade mark owner to prove use of the trade mark. The EUIPO decision was relatively critical of the type and extent of evidence filed, finding it did not prove genuine use of the Big Mac trade mark in Europe. Yes, the Big Mac trade mark! The EUIPO found:
The methods and means of proving genuine use of a mark are unlimited. The finding that genuine use has not been proven in the present case is due not to an excessively high standard of proof, but to the fact that the EUTM proprietor chose to restrict the evidence submitted (15/09/2011, T‑427/09, Centrotherm, EU:T:2011:480, § 46).
This decision reinforces the importance for IP owners of both instructing excellent and experienced counsel (which McDonald's did) and not taking anything for granted in disputes.
McDonald's will almost certainly appeal the decision, but for now Supermac, the self-styled 'David' (despite having over one hundred outlets) in this long-running battle, can bask in the glow of its victory over its golden-arched Goliath.
fast-food chain, Supermac’s, won a landmark legal battle against McDonald’s over the use of trademarks. The Galway-based firm persuaded the European Union Intellectual Property Office (EUIPO) to cancel McDonald’s use of the “Big Mac” trademark, opening the way for Supermac to expand across Britain and continental Europe. McDonald’s can appeal against the ruling.