Legal

Brisbane-based burger chain under fire from McDonald’s over ‘Big Pac’

Matthew Elmas /

McDonald's Big Mac

A McDonald's Big Mac. Source: AAP/Richard B Levine.

A stoush between a Brisbane-based burger business and global fast-food giant McDonald’s has forced the former to ditch one of its new products.

Burger Urge, a premium fast-food chain started by Sean and Colby Carthew in 2007, will pull a recently launched Alpaca burger dubbed the ‘Big Pac’ from its restaurants tomorrow after McDonald’s issued it a cease and desist notice earlier this week.

McDonald’s was none too pleased with the burger, which it claims infringes on its iconic Big Mac trademark.

The burger itself bears a resemblance to the Big Mac, although the patties are Alpaca meat, rather than beef.

This is simply a marketing stunt to leverage our well-established and iconic brand. We have no issue with the burger itself, however, the name and promotion are infringing on our trademark by clearly mirroring our famous Big Mac,” a McDonald’s spokesperson said in a statement.

Burger Urge has decided to comply with McDonald’s request, but mainly to “keep the peace”, as the business is worried it doesn’t have access to the same team of lawyers McDonald’s may throw at it.

“At the request of McDonald’s legal team, we will be pulling the Big Pac from sale at 5pm tomorrow (Friday),” a Burger Urge spokesperson said.

“We continue to maintain that nobody in their right mind could possibly confuse our premium alpaca burger with a McDonald’s product, but we’re happy to capitulate in order to keep the peace.”

McDonald’s looks to protect IP

Speaking to SmartCompany, commercial lawyer Richard Pragnell of Viridian Lawyers says McDonald’s has a solid claim for trademark infringement.

“This strikes me as a relatively clear-cut example of trademark infringement,” he says.

“The fact that the advertisement is humorous is, unfortunately, not a defence.”

Whether or not the product is made with Alpaca meat is also not important in relation to intellectual property law, Pragnell explains, as it’s the name and marketing of the product in dispute.

Pragnell warns businesses need to be careful not to confuse the difference between satirising something, which has a fair use defence, and infringing on a trademark.

So why has McDonald’s been so proactive?

Pragnell says the fast-food giant is protecting itself from having the intellectual property associated with the Big Mac diluted.

“Trademarks need to be able to distinguish their products from competitors and for a trademark to be continually valid over time it needs to continue to distinguish.

“Businesses are at risk of losing their product if it becomes generally used over time,” he says.

For example, if ‘Big Mac’, or similar terms, start being used as a category of burger, rather than something distinct to McDonald’s, the business could lose its trademark over time.

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Matthew Elmas

Matthew is the news editor at SmartCompany.

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