Not even the EU is that stupid: McDonald's hasn't really lost the trademark to 'Big Mac'

The assembled new outlets of the world are reporting that McDonald's has lost the trademark to “Big Mac” over here in Europe. This is not quite so — it's not even a little bit true, despite what so many urge us to believe. The truth is a little spat within trademark law, not a theft from an American corporation of a major part of their branding.

Reuters, of all outlets, tells us that “McDonald's Corp has lost its rights to the trademark 'Big Mac' in a European Union case ruling in favour of Ireland-based fast-food chain Supermac's,” and it's true that they've managed to spell the names of the two companies right. Other than that, not so much. Everyone else also seems to be making the same error.

What has actually happened is that McDonald's has lost the right to the trademark “Supermac.” This is, I think we can all agree, a little different from the famous "Big Mac" trademark.

Trademark law, like so much else devised by lawyers, has its little quirks. One of these is that for a mark to remain validly yours, you've got to both use and defend it. Decades back, the newspapers would regularly print little letters from a firm of lawyers. Back then, Bic or Biro were trademarks of one particular manufacturer of, well, bics or biros — cheap ballpoint pens. They knew that if they allowed the trademark to enter the vernacular just as a general description, then that mark would fail. Strunk and White probably has a chapter on how things move from proper noun, Bic or Biro, to mere noun, bic or biro. It's one of these things that just does happen as an invention becomes popular, like Kleenex tissues. Google will undoubtedly become "I googled it." Those lawyers' letters always saying something like "Your correspondent used a lower case 'b,' they must use an upper-case 'B.'" Because that's how trademark is defended: You defend it from people using it to refer to anything other than your product.

At which point, we can explain what happened to McDonald's. As well as gaining the European trademark for “Big Mac” to apply to hamburgers, they also registered a number of similar sorts of phrases — among them being “Supermac,” which is also the name of an Irish chain of burger joints. No real problem as long as Supermac didn't want to expand outside Ireland — but now, they do. But they couldn't, using their own name, because McDonald's owns that across Europe when it's in reference to hamburgers.

Ah, but, McDonald's hasn't actually been using “Supermac” to refer to burgers. And a trademark isn't like a patent that you can just lock in the bottom drawer and prevent others from using. You've got to not only defend it, you've got to be using it yourself.

So, Supermac applies to the European Union Intellectual Property Office for a declaration that McDonald's trademark for “Supermac” was not valid. At which point, the EUIPO said ”that the world's largest fast-food chain had not proven genuine use of it over the five years prior to the case being lodged in 2017," and therefore, it didn't belong to McDonald's anymore.

Nothing at all has happened about the Big Mac trademark, for not even the European Union's bureaucracy is stupid enough to think that McDonald's doesn't use nor defend it.

As Supermac's Padraic O Neachtain points out, the very mention of Big Mac is an error and “is not a narrative that came from us. “ And as to the second point, what is in fact the point of the story, “It doesn’t enable us as we need to continue with our application. But it does remove the main reason for us not getting it previously.”

That is, they couldn't apply for the Supermac trademark to protect their own interests because McDonald's owned it. But now, it's shown that McDonald's hasn't been using nor protecting it. Thus, Supermac can now apply, although not necessarily gain, an EU trademark over their own company name.

So far, it's all just a little tale about the details of trademark law. Except, well, it isn't, is it? Not when the entire world's screaming about how the Internet enables fake news and we've really got to do something about that.

Tim Worstall (@worstall) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a senior fellow at the Adam Smith Institute. You can read all his pieces at The Continental Telegraph.