McDonald’s moves to supersize lawsuit against Hungry Jack’s

McDonald's Australia is threatening to supersize its trademarks lawsuit against Hungry Jack's after its rival launched a television campaign claiming the Big Jack burger is "clearly bigger" than "some American burger".

The fast-food giant filed Federal Court proceedings on August 28 against Hungry Jack's over the registered trademark "Big Jack", which McDonald's claims is "substantially identical with or deceptively similar" to its Big Mac trademark. It is seeking to have the trademark cancelled.

But Hungry Jack's says the trademark plays on the company’s name and the name of "its founder and current owner, Jack Cowin".

Following the lawsuit, Hungry Jack's released television advertisements saying "someone's suing Hungry Jack's" but the Big Jack was "clearly bigger" than "some American burger" with "25 per cent more Aussie beef".

The fast feud has played out in public since the claim was launched. On Friday, the parties attended a preliminary hearing in the Federal Court.

Sydney barrister Edwina Whitby, acting for McDonald's, told Federal Court Justice Stephen Burley, "It is another battle of the burgers in the Federal Court, your honour."

The court has been asked to resolve a series of bun fights, including an ongoing dispute involving a Sydney burger chain that raised the ire of US fast-food giant In-N-Out Burger by dubbing itself “Down N’ Out”.

Ms Whitby said McDonald's had written to Hungry Jack's objecting to the TV advertisement and "seeking substantiation of the claim". She foreshadowed adding a potential claim for misleading or deceptive conduct to the trademarks infringement case.

"It doesn't seem like this thing is shrinking any, does it?" Justice Burley said.

Ms Whitby said Hungry Jack's had used the trademarks Big Jack and Mega Jack in relation to two new "lookalike burgers" and had infringed McDonald's registered trademarks Big Mac and Mega Mac.

McDonald's is seeking cancellation of the Big Jack trademark, but not Mega Jack, and has claimed the trademark is "likely to deceive or cause confusion" among consumers.

Ms Whitby alleged Hungry Jack's had "deliberately copied" the ingredients, appearance and tagline of the Big Mac and its conduct fell "short of acceptable commercial standards and constitutes bad faith".

Justice Burley suggested claims about the appearance of the burgers was "clutter" and the case was about the deceptive similarity of the trademarks.

Sydney barrister Sophie Goddard, SC, for Hungry Jack's, said allegations about the "lookalike" nature of the burgers were "misplaced" and "we strongly submit there's no intellectual property in that material".

The burgers' appearance is not trademarked. Hungry Jack's argues in court documents that, if the burgers share similarities, they are "common characteristics of hamburgers" sold everywhere.

Ms Goddard said the case was about the similarity of the trademarks and "no Australian consumer" would be confused "in the slightest" about which outlet was selling the burgers.

She added there was a "real paucity" of detail in relation to the claim Hungry Jack's had acted in bad faith.

The parties return to court at a later date.

Get our Morning & Evening Edition newsletters

The most important news, analysis and insights delivered to your inbox at the start and end of each day. Sign up here. 

Most Viewed in National

Source: Read Full Article