McDonald’s has recently filed a claim in the Federal Court of Australia against Hungry Jack’s, alleging that Hungry Jack’s has infringed their ‘Big Mac’ trademark with their new burger, the ‘Big Jack.’ McDonald’s filed their claim under the Trade Marks Act 1995, that the Big Jack is ‘substantially identical’ and ‘deceptively similar’ to their Big Mac, such that it is ‘likely to deceive or cause confusion’ to consumers.’
When Hungry Jack’s filed their Big Jack trademark, MacDonald’s did not oppose it during the relevant opposition period, being within two months of the mark being advertised 15 April 2020. Thus, McDonald’s only option was to take court action. McDonald’s argues that Hungry Jack’s action constitutes a ‘bad faith’ act because they were aware of McDonald’s existing trademark. McDonalds seeks to rely on its reputation under section 60 of the Trade Marks Act, to show that the Big Mac has indeed acquired a reputation and because of that reputation, the Big Jack would be likely to deceive or cause confusion.