Last week, the Operations Department of the Cancellation Division of the European Union Intellectual Property Office (EUIPO) issued a ruling that, under the European Union Trade Mark Delegated Regulation (EUTMDR), it was cancelling the registration held by McDonald’s International Property Company, Ltd. (McDonald’s) on the trademark “BIG MAC” (BIG MAC).
The business press was horrified by the ruling, understandably, as it held that McDonald’s had failed to prove to the satisfaction of the EUIPO that the BIG MAC trademark had been “put to genuine use during a continuous period of five years.” Reading the decision is like being trapped in one of those Twitter canoes where a Rational Man is explaining why none of the evidence that racism exists is sufficient to demonstrate that racism exists: McDonald’s affidavits about how many Big Macs it sells are merely claims by the interested party; printouts of McDonald’s website showing Big Macs for sale offer no data on the number of Big Macs actually sold, nor “information of a single order being placed”; the Wikipedia page for the Big Mac “cannot be considered as a reliable source of information, as [it] can be amended by Wikipedia’s users.” Perhaps McDonald’s contrived all its marketing and packaging materials for the sake of misleading the EUIPO, and has never in fact sold one single pair of all-beef patties anywhere east of the Azores.
In case anyone doubted that the decision was an exercise in arbitrary bureaucratic hair-splitting, Bloomberg noted that the decision only voids the trademark on “BIG MAC,” in all caps, leaving McDonald’s control over “Big Mac” and “Grand Big Mac” intact.
The magic of intellectual property disputes, though, is that the whole realm is so stupid and perverse, the existence of an obviously wrong decision doesn’t mean the losing side was in the right. The only thing rivaling the EUIPO decision for bad faith and blockheadedness was McDonald’s decision to get into a battle over “BIG MAC” in the first place, because it wanted to stop an Irish burger chain called Supermac’s from expanding.
What the European Union chose to get wrong was, fundamentally, the same thing McDonald’s was asking it to get wrong: the question of whether there is any ambiguity at all about what a “Big Mac” is. McDonald’s has spent countless dollars on decades’ worth of marketing to make absolutely certain that everyone knows the Big Mac brand. It has succeeded at this completely. The brand is unassailable. No one would ever confuse something called “Supermac’s” and its “Mighty Mac” burger with the Big Mac, available only at McDonald’s. McDonald’s decided to pretend otherwise, against all the evidence, and the trademark office decided to ignore all the evidence too.