After McDonald’s lost its trademark for Big Mac in the European Union, Burger King in Sweden revamped its menu in a snarky hat tip to the rival fast-food chain.
Imitation, it turns out, is also the sincerest form of trolling.
In early February, Swedish outposts of Burger King featured menus with names grounded in Big Mac comparisons, including: “The Kind of Like a Big Mac, but Juicier and Tastier” and “The Big Mac-ish but Flame-Grilled Of Course.” Other options were even more derogatory: “The Burger Big Mac Wished It Was” and “The Anything But a Big Mac."
McDonald’s lost the Big Mac trademark after a legal battle with Supermac’s, an Irish fast-food chain. (The name comes from owner Pat McDonagh’s nickname in his heyday as a college Gaelic football player.) McDonagh started the chain in 1978 and has faced opposition from McDonald’s over the naming of the chain’s offerings, like a burger called Mighty Mac, which shares many ingredients with the Big Mac. McDonald’s suggested that the similarity in names might confuse customers. Supermac’s argued that McDonald’s legal interventions were preventing the chain from expanding outside Ireland.
But the European Union Intellectual Property Office decided in January that McDonald’s hadn’t proved “genuine use” of the Big Mac trademark in the E.U., leaving the Big Mac name up for grabs. Supermac’s rejoiced, painting the case as an example of trademark bullying — when a well-known company tries to aggressively enforce its trademark rights, even in situations where the other party isn’t in direct competition with the well-known company.
"We’re delighted. It’s a unique victory when you take on the golden arches and win,” McDonagh said of the ruling, the Guardian reported. “This is a victory for all small businesses. It prevents bigger companies from hoarding trademarks with no intention of using them.”
“McDonald’s just lost its trademark for the Big Mac for suing a much smaller player. … It’s too much fun for us to stay away,” said Iwo Zakowski, chief executive of Burger King’s Swedish operation, according to a Guardian report.
Given the similarity of food and names, this case doesn’t meet most standard definitions of trademark bullying, said Kyle Kroll, an intellectual property attorney with Winthrop & Weinstine. But according to Kroll, accusations of trademark bullying generally carry more ideological weight than legal significance.
“What Supermac’s is promoting in their response to the EUIPO decision is that this was an example of trademark bullying because it’s a David versus Goliath scenario,” Kroll said. “The term is thrown around a lot by smaller companies to engender some sympathy.”
In a statement provided to The Washington Post, McDonald’s said it plans to appeal the EUIPO decision.
“We are disappointed in the EUIPO’s decision and believe this decision did not take into account the substantial evidence submitted by McDonald’s proving use of our BIG MAC mark throughout Europe. We intend to appeal the decision and are confident it will be overturned by the EUIPO Board of Appeals,” the statement said. “Notwithstanding today’s decision, McDonald’s owns full and enforceable trademark rights for the mark ‘BIG MAC’ throughout Europe.”
Burger King’s marketing campaign was created by Stockholm-based ad agency INGO. The agency released a video of customers awkwardly navigating the newly renamed menu to announce the campaign.
This is the latest in a string of saucy standoffs between Burger King and McDonald’s. In December, Burger King offered a promotion where customers could get a Whopper for a penny if they ordered through the Burger King app from a McDonald’s parking lot.