The case is regularly misreported. It deserves to be retold in order, because the successive decisions say different things.
The trade mark at issue
“BIG MAC” is a European Union word mark, registered under no. 62638 on an application filed on 1st April 1996 by McDonald's International Property Co. Ltd. It covers three classes, with a very broad list: meat, fish, poultry, sandwiches, but also eggs, cheese, milk, desserts, biscuits, bread, coffee, sauces - and, in class 42, restaurant operation and franchising services.
On 11 April 2017, the Irish chain Supermac's, in dispute with McDonald's over its own applications, applied for the total revocation of the trade mark for lack of genuine use. The principle is simple: a trade mark not used for five years can be revoked for the goods concerned.
2019: the spectacular - and provisional - decision
On 11 January 2019, the Cancellation Division of the EUIPO ordered the total revocation of the trade mark, for all goods and services. Reason: the evidence produced by McDonald's did not demonstrate the extent of use. It consisted in particular of three affidavits signed by employees of the company, advertising brochures, screenshots of its own websites and… an extract from the Wikipedia page on the Big Mac.
The world's press reported that McDonald's had “lost the Big Mac”. That is not accurate: the decision was not final, and it was largely reversed on appeal. On 14 December 2022, the Fourth Board of Appeal of the EUIPO restored the trade mark for meat and chicken sandwiches, meat and poultry products, and restaurant services.
2024: the General Court of the European Union decides
On 5 June 2024, the General Court of the European Union delivered its judgment in case T-58/23. It partially annulled the 2022 decision and ordered additional revocation for:
- “chicken sandwiches” (classes 29 and 30);
- “foods prepared from poultry products” (class 29);
- restaurant services, drive-through and preparation of carry-out foods (class 42).
The reason is the same as in 2019, and it focuses more tightly on the evidence:
“The evidence submitted by McDonald's does not provide any information on the extent of use of the mark for those goods, in particular as regards the volume of sales, the length of the period of use and the frequency of that use.”Press release no. 92/24 of the Court of Justice of the European Union, 5 June 2024 - original in English
What remains for McDonald's, on the other hand, is the essential: “foods prepared from meat products”, “meat sandwiches” and “edible sandwiches”. The Big Mac hamburger itself is not affected. What falls is poultry and services.
McDonald's pointed this out: the decision “does not affect our right to use the Big Mac trademark”. For his part, the head of Supermac's, Pat McDonagh, welcomed “a significant decision, which takes a common-sense approach to the use of trade marks by large multinationals”, describing a “David versus Goliath” scenario.
What the case teaches
A trade mark, even among the best known in the world, is not a title acquired once and for all: product by product, it is worth only what its owner can prove it has done with it. And here the revocation extended even to restaurant franchising services - the heart of the model. On what this model actually covers, see the architecture of fees, rents and advertising contributions. The Antibes case file, for its part, preserves the definition given by the specialist press of the time in L'Officiel de la Franchise's dictionary of franchising.
What the case says about evidence
The decisive point is not what Supermac's demonstrated: it is what McDonald's did not prove. In revocation for non-use, the burden of proof lies on the trade mark owner, and on the owner alone. The office invites it to establish genuine use; if the evidence is lacking or deemed insufficient, revocation is ordered. A world-famous trade mark can therefore lose rights for failing to produce the right documents.
A second point, often blurred: a trade mark office rules only on the right to registration. It does not say who may use a sign, convicts no one of infringement and awards no damages. The same applies in the United States, where the USPTO rules on registrations while the federal courts decide infringement - and, in common-law countries, to passing off, which protects the actual goodwill attached to a sign even without any registration.