Who’s in the bigger pickle – Hungry Jacks or McDonald’s? The latest allegations between the two competitors provide a timely reminder about trade mark protection.

While the Big Mac hamburger has been on the market since 1973, Hungry Jack’s Big Jack only launched in July of this year. The two burgers strike an uncanny resemblance from the similarity of their ingredients to, notably, their names. In court filings lodged on 28 August 2020, McDonald’s alleges that Hungry Jack’s use of the Big Jack trade mark is likely to deceive consumers and cause confusion as it is substantially identical with or deceptively similar to McDonald’s Big Mac trade mark.

The interesting part about the proceedings is that BIG JACK is a registered trade mark in Australia. The Big Jack trade mark application was uncontested on lodgement in November 2019 and was successfully registered in June 2020, just prior to the commencement of the marketing campaign. The application was successful despite McDonald’s existing Big Mac trade mark.

While McDonald’s had the opportunity to oppose Hungry Jack’s Big Jack trade mark application whilst it was advertised for a two month period (as part of the trade mark application process) it did not lodge any opposition at that time. After the Big Jack campaign launched, McDonald’s was then only left with the option to take court action. Central to McDonald’s action is the accusation that Hungry Jack’s lodged and registered their trade mark in bad faith considering the reputation of the existing Big Mac trade mark.

Key takeaways

This fast food feud serves as a key reminder to register, protect and monitor your trade mark. McDonald’s trade mark was already in place; however, this did not automatically prevent a new trade mark being registered that could confuse consumers. It is crucial to remember that holding a trade mark is not a ‘set and forget’ activity. To protect your brand, and proactively prevent these situations, you must continually use your trade mark and monitor new applications.