Does McDonald’s Sell Big Macs? The EU Isn’t So Sure

(Bloomberg Opinion) -- Does McDonald’s sell Big Macs? The European Union’s Intellectual Property Office isn’t so sure, and has stripped the company of the BIG MAC trademark. This is but the latest example of an EU allergy to U.S. multinationals that officials always deny but somehow keeps erupting. 

The EUIPO ruling, which McDonald’s says it plans to appeal, reads like it was written by someone who has never been to a McDonald’s. It maintains that the U.S. corporation has been unable to prove that it actually sells Big Macs, even though the fast-food chain had presented what it considered to be definitive proof, such as affidavits from employees in the U.K., Germany and France, pictures from the corporate website and even a printout from Wikipedia that describes the Big Mac as “a hamburger sold by international fast food restaurant chain McDonald’s” since 1967.

The intellectual property authority, however, appeared to mock the U.S. company by remarking in the ruling that the employee statements weren’t independent evidence, that no proof had been presented that anyone ever visited the McDonald’s website (and anyway, pictures on the website don’t mean actual sales), and that Wikipedia isn’t a reliable source of information. The EUIPO wrote:

Taking into account the submitted evidence as a whole, it is concluded that the documents do not provide conclusive information that the products marked with the EUTM [European Union trademark] are offered for actual sale, as there is no confirmation of any commercial transactions, either online, or via brick-and-mortar operations. Even if the goods were offered for sale, there is no data about how long the products were offered on the given web page or in other ways, and there is no information of any actual sales taking place or any potential and relevant consumers being engaged, either through an offer, or through a sale.

The ruling deserves to be a meme on a par with the “Le Big Mac” episode from Quentin Tarantino’s “Pulp Fiction.” It also makes McDonald’s appeal look like a shoo-in: The company can muster endless outside data (including that “Pulp Fiction” episode) proving that it sells a sandwich called the Big Mac.

So why did the EU make this seemingly ridiculous ruling? The matter ended up before the EUIPO’s Cancellation Division via a complaint by Supermac’s, a fast-food chain with about 100 stores throughout Northern Ireland and the Republic of Ireland. It owes its name to its founder and managing director, Pat McDonagh, who took on the moniker Supermac after he helped his school win an important Gaelic football game. McDonagh has claimed that McDonald’s has been hampering his Ireland-based company’s plans to expand in the U.K. and other EU countries, claiming that its name is too similar to Big Mac. Supermac’s has accused McDonald’s of “trademark bullying” and appealed to the EUIPO, arguing that the Americans had registered the BIG MAC trademark for too many uses.

BIG MAC was, indeed, registered for a long list of goods and services, including “services rendered or associated with operating and franchising restaurants and other establishments or facilities engaged in providing food and drink.” That overly broad language created the obstacle to Supermac’s proposed expansion. The Irish company argued that the BIG MAC trademark should be confined to sandwiches; it just got a bit more than it asked for from the EUIPO.

McDonagh has celebrated the battle as a David vs. Goliath victory, and cited the ruling as evidence of the EU’s usefulness to smaller companies. It’s quite likely (though impossible to prove) that the EUIPO reasoned along those lines and that the officials’ goal was to teach McDonald’s a lesson for using its trademark portfolio against legitimate competitors. After all, the EU office didn’t really throw open the use of the trademark to anyone who might want it: Apart from BIG MAC (in capital letters), which will soon be canceled, the EUIPO had also registered “Big Mac” and “Grand Big Mac” in the same classes. 

From a layman’s point of view, it’s patently unfair for McDonald’s to hinder Supermac’s expansion; no reasonable person would confuse the two. But EUIPO is using its limited powers in an overly creative way to deliver this common-sense message. The EU does something similar when its attacks on multinationals’ tax-avoidance schemes based on its state aid rules or applies competition regulations to pester the dominant, often arrogant U.S. internet giants. Fairness is served in most of those cases, but the aggressive U.S. corporations’ complaints of bureaucratic overreach are, at times, legitimate too.

To contact the editor responsible for this story: Max Berley at mberley@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Leonid Bershidsky is Bloomberg Opinion's Europe columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.

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