Hungry Jack's Big Jack 'not deceptively similar' to McDonald's Big Mac in burger case, court finds
By Helena BurkeMcDonald's has lost its legal dispute with fast-food rival Hungry Jack's over its Big Mac lookalike burger the "Big Jack".
Key points:
- A court has ruled a Hungry Jack's burger did not infringe on McDonald's trademark
- McDonald's argued its rival's product could confuse consumers and eat into its profits
- A scientist was brought in to weigh the two-patty burgers over the three-year trial
The American giant had claimed that consumers would confuse the Big Jack with the Big Mac and this would eat into McDonald's profits.
But Justice Stephen Burley ruled against the claim in the Federal Court on Thursday.
"Big Jack is not deceptively similar to Big Mac," Justice Burley said.
"As a consequence, McDonald's has not established that the impugn use of the Hungry Jack's trademarks infringes its registered trademarks."
Both burgers feature a sesame seed bun, two beef patties, lettuce, gherkins, cheese and a third slice of burger bread in the middle.
Despite their similar appearance, the trademarks argued over in court relate to the burgers' names and not their appearance.
Experts brought in to weigh burgers
Hungry Jack's bit back at McDonald's during the trial with an ad claiming the Big Jack was the superior product.
"Someone's suing Hungry Jack's. They reckon Aussies are confusing the Big Jack with some American burger," the ad says.
"But the Big Jack's clearly bigger with 25 per cent more Aussie beef."
McDonald's disputed the claim, and two experts were called in during the trial to compare the two burgers – including a scientist with a PhD in analytical chemistry.
The experts travelled around Brisbane and Melbourne weighing burgers from more than 50 Hungry Jack's and McDonald's stores.
The meat in the Big Jack was found not to be 25 per cent bigger than the meat in the Big Mac as the Hungry Jack's ad had claimed.
"The average cooked weight of the BIG JACK beef patties coming is no more than 15 per cent greater than the Big Mac," Justice Burley said.
"Hungry Jack's has engaged in misleading or deceptive conduct in breach of section 18 of the Australian Consumer Law."
A three-year bunfight
The battle of the burgers between McDonald's and Hungry Jack's lasted for more than three years in the court.
McDonald's had sought a declaration that Hungry Jack's infringed on the trademarks it has for both its Big Mac and Mega Mac products.
Along with the Big Jack, Hungry Jack's also launched a "Mega Jack" burger in 2020.
McDonald's sought damages and costs along with an order that Hungry Jack's destroy all "promotional materials, including physical and electronic brochures, menus, advertising and marketing materials, stationery, signage, packaging and documents" using the Big Jack and Mega Jack names.
Hungry Jack's argued in court that it was unreasonable for McDonald's to suggest that a customer would get confused between the two burgers as Hungry Jack's and McDonald's are different and distinct stores.
"There is no likelihood that a consumer would be caused to wonder whether the goods sold in an Hungry Jack's outlet by reference to Big Jack would come from the same source as a Big Mac," Hungry Jack's said.
Justice Burley ordered the parties to confer on orders to give effect to his judgement, including the payment of legal costs.