Burger King and McDonald’s have been slugging it out for decades in the US, but not so much in Australia (at the risk of oversimplification, Burger King became Hungry Jack’s in Australia with founder Australian Jack Cowin).
That was until 2020, when Hungry Jack’s launched the Big Jack and the Mega Jack:
McDonald’s, with its Big Mac and Mega Mac, was not happy. It sued, with judgment delivered in McD Asia Pacific LLC v Hungry Jack’s Pty Ltd [2023] FCA 1412 on 16 November 2023.
The Federal Court of Australia accepted evidence from Hungry Jack’s chief marketing officer that there was an “element of cheekiness” in the firm’s choice of burger name, and that he “was aware that the name would likely be perceived as a deliberate taunt of McDonald’s”, but found that the brands were not deceptively similar and could coexist, rejecting McDonald’s trademark infringement and related claims.
Not surprising really, they found that the names were recognisably different, the common-sense likelihood was that consumers would not be confused about which restaurant sold the Big Jack or Big Mac, and that McDonald’s had not provided any evidence of deception.
So far so good for Jack’s burgers, but they were advertised as having “25% more Aussie beef” than McDonald’s, including in advertisements depicting the burgers cooking, but basing their representations on pre-cooked weights. Turns out that, according to the burger patty experts, Hungry Jack’s had only 12-15% more beef by post-cooking weight, and that was enough for McDonald’s to succeed in its claim that Hungry Jack’s had mislead consumers.
How cooking shrinkage sounds in damages or other relief for misleading conduct awaits a further hearing.
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