McDonald’s no longer has the right to use the term "Big Mac" for poultry products after it has not used it for five consecutive years. The ban was sanctioned today by the EU Court of Justice after the Irish competitor Supermac’s sued in 2019 on the intellectual property of the Big Mac (see article EFA News). An appeal was filed against the decision, but today the Court of Justice closed the case by declaring that, for some products and services, "McDonald’s has not demonstrated effective use for an uninterrupted period of five years in the Union". 

Supermac’s and McDonald’s, respectively an Irish and an American fast food chain, have been involved for 5 years in a dispute concerning the European Union brand Big Mac: the brand was registered in favor of McDonald’s in 1996. In 2017, Supermac’s submitted an application for revocation of that mark in respect of certain products and services, considering that the brand "had not been the subject of actual use for those products and services in the Union for an uninterrupted period of five years". In 2019, as we said, Euiopa, the EU’s Intellectual Property Office rejected McDonald’s appeal against the Irish fastfood chain. 

Euipo, at that time, had partially granted the application, but had confirmed the protection conferred by the mark contested on McDonald’s, "in particular, for meat and poultry foods and sandwiches with meat and chicken, as well as for services provided or related to the operation of restaurants and other premises or catering facilities for consumption and drive-in and for the preparation of dishes from takeaway".

With its ruling today, the court annuls and partially reforms the decision of the Euipo, further limiting the protection conferred by the contested trademark to McDonald’s. The court, in fact, states that "McDonald’s has not demonstrated that the contested mark has been the object of an effective use as regards the products 'panini con pollo', 'poultry food' products and take-out preparation services provided or related to the operation of restaurants and other premises or catering infrastructure for consumption and drive-in".

The evidence produced by McDonald’s, underlines the sentence, "shall not give any indication of the extent of the use of the mark for such products, in particular as regards the volume of sales, the duration of the period during which the acts of use were carried out and their frequency". 

"Therefore, the EU Court of Justice concludes, the evidence taken into account by Euipo does not allow to prove the existence of an effective use of the contested trademark for those products". In addition, the court adds, the evidence produced by McDonald’s does not allow to prove that the contested mark was used for "services provided or related to the operation of restaurants and other premises or catering infrastructure for consumption and "drive-in"; preparation of takeaway dishes".