BIG MAC use recognised for "restaurant services"

The Fourth Board of Appeal of the EUIPO has overturned the decision of the Cancellation Division after accepting additional evidence, and concluded that the BIG MAC trade mark was not only used to identify a specific sandwich, but also to promote the food provider.

McDonald's therefore prevails against Supermac's in this dispute initially raised in 2017.

At the appeal stage, McDonald's submitted various additional evidence to prove the extent of use of their mark, including:

• Consumer surveys showing that the degree of the awareness of the term ʻBig Macʼ in relation to McDonald’s fast food products is on extremely high level for  the  general  public  in  Germany;
• Copies of receipts and/or excerpts from electronic cash registers from several ʻMcDonald’sʼ  restaurants,  all of which demonstrate the actual sale of ʻBig Macʼ sandwiches;
• A financial  audit report containing: 
  • information on the ʻBig Macʼ units sold on the relevant  local market in Germany and the United Kingdom and in France, 
  • (ii) confirmation that ‘Big Mac’ units sold from the UK, German and French reporting  system  were  equal  to  or exceeded  data provided  in  the affidavits submitted; and 
  • (iii) information on the movement of ʻpoint of saleʼ (ʻPOSʼ) data from restaurant cash registers to the EUTM proprietor’s financial reporting systems 
• A letter of confirmation provided by the representative of a German employers’ and trade association in the restaurant chain sector, in particular that the ʻBig Macʼ hamburger is one of their best-selling and most significant core products and has represented McDonald’s long-standing hamburger tradition like no other product for many years or even decades;
• Articles on the use of the ʻBig Mac Indexʼ since 1986 as a model of consistency because it is produced ʻin nearly identical fashion across more than 36 000 restaurants in over 100 countriesʼ;
• Advertising  material and affidavits related to advertising expenditure in relation to the contested mark, supported by the specific advertising campaigns attached as screenshots;
• Photographs of original packaging used in relation to the ʻBig Macʼ product and photographs of menus used in McDonald’s restaurants, comprising ʻBig Mac®ʼ as one of the sandwiches offered at McDonald’s;
• Evidence of marketing efforts, with advertisements, social media accounts, promotional YouTube videos and articles from the reputed UK newspapers and websites.

The Board of Appeal found that such evidence confirms that ʻBig  Macʼ  is the flagship burger of the EUTM proprietor’s fast-food chain and as an emblematic sandwich sold globally and representing a model of consistency it is used as the basic unit of ʻBig Mac Indexʼ to measure purchasing power parity between currencies.