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Big Mac vs Big Jack: What Went Wrong?

When fast food chain Hungry Jack’s released its Big Jack burger back in July, one thing stood out. Aside from its remarkable similarity to the flagship burger of the chain’s major competitor, McDonald’s, the Big Jack promotional material came emblazoned with the ‘Registered Trade Mark’ symbol.

It appears we have a hamburgler on our hands. Sorry, we couldn’t resist.

Pod Legal did some investigating. According to IP Australia, the Big Jack trade mark was filed by Hungry Jack’s on 14 November 2019, under classes 29 and 30 with no opposition.

The major question from a legal perspective is, how did McDonald’s not pick up on the cheeky registration sooner?

Trade mark registrations undergo a lengthy process before being accepted, and during this time competitors or anyone with a reason to disagree with the registration can oppose it with the Trade Marks Office. The formal opposition period runs for two months and it commences approximately four and a half months after the application is filed. It’s during the opposition period that McDonald’s had the chance to oppose the Big Jack trade mark, on the grounds that it is deceptively similar to the Big Mac.

How did McDonald’s miss the Big Jack registration?

The Big Jack’s listing on the Trade Marks Register shows that it entered the opposition period in April 2020, before being accepted in June 2020. So, were McDonald’s too busy handling the complexities of COVID-19 to notice? Was this a strategic move from Hungry Jack’s to slide under the radar while competitors had bigger problems to worry about?

Ultimately, we’ll never know. But what we do know is that McDonald’s aren’t happy. The giants are now set to battle it out in Federal Court over the blunder, as McDonald’s claims the Big Jack is “substantially identical with or deceptively similar” to its Big Mac trade mark.

The problem they now face is that having an existing trade mark cancelled poses a substantially bigger and more costly challenge than opposing it in the first place. Businesses invest heavily in trade mark monitoring resources to keep abreast of these types of registrations, and had McDonald’s been on their game, they could have had the trade mark rejected before it got this far.

Aside from the additional time, resources and costs required to have a trade mark cancelled, in many ways the damage has already been done. The Big Jack vs Big Mac scandal has made global news, and several media outlets and content creators have already taken to comparisons and taste tests between the two almost identical products.

Trade mark monitoring

The lesson for businesses large and small, here, is to keep on top of competitor trade marks. Not only do you stand a better chance of protecting your brand and not letting mistakes like this slide under the radar, but you can gain valuable insight into your competitors’ strategic moves.

Pod Legal offers a suite of trade mark monitoring options under our PodWatch product. Starting at just $29 per month, you can entrust us with the monitoring of your trade marks and never experience your own Big Jack blunder!