CJEU: McDonald’s Loses Chicken BIG MAC Trade Mark

Aug 2, 2024 Benn-Ibler Rechtsanwälte

The Court finds that McDonald's has not demonstrated genuine use for certain goods and services for an uninterrupted period of five years

BIG MAC as an EU trade mark was registered in 1996 and belongs to McDonald’s. In 2017, Supermac’s, an Irish fast food chain, filed an application for the revocation of the trade mark in respect of certain goods and services. This application was partially granted by the European Union Intellectual Property Office (EUIPO) in its decision R 543/2019-4 in December 2022. The General Court of the European Union has now overturned this decision and further limited the protection afforded by the BIG MAC trademark.

Supermac’s action for annulment (Article 263 TFEU) against the above 2022 decision was based on McDonald’s failure to make genuine use of the Big Mac trademark for certain goods and services for a continuous period of five years. The EUIPO granted the request in part, but not in relation to protection for ‘foods prepared from meat and poultry products’, ‘meat and chicken sandwiches’, and for ‘services rendered or associated with operating restaurants and other establishments or facilities providing food and drink for consumption and for drive-through facilities’; and for 'the preparation of carry-out foods.’

However, the Court found that McDonald’s had not provided evidence of genuine use of the BIG MAC trade mark for ‘chicken sandwiches’, ‘poultry dishes’ and the above services and dishes. In particular, there was a lack of information as to the quantities sold, the duration of the period of time for the acts of use, and the frequency of those acts. Consequently, use in those sectors could not be proven, and protection for those sectors was limited by the General Court.

CJEU Case T-58/23 (5 June 2024)