# Get McFucked **URL:** \ **Category:** The BBQ Pit\ **Created:** [March 11, 2005, 1:05pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006 "2005-03-11T13:05:54Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![CanvasShoes](https://avatars.discourse-cdn.com/v4/letter/c/74df32/32.png) [@CanvasShoes](https://boards.straightdope.com/u/CanvasShoes)\ **Post date:** [March 15, 2005, 7:59am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/81 "2005-03-15T07:59:56Z")
> [@Beware of Doug](#): > > Does anyone recall that _Bloom County_ once defined an Un-American as “someone who thinks McDonald’s hamburgers taste like masking tape”? Whew, good thing I said salty greasy cardboard! 😃 ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 8:30am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/82 "2005-03-15T08:30:39Z")
> [@jeevmon](#): > > do an appreciable number of consumers associate all clowns with McDonalds? Probably not. I would guess that MORE consumers associate all clowns with McDonalds than associate McBrat with a nonexistent bratwurst sandwich that _maybe, could_ be made by McDonalds. So where does that leave your theory? > [@](#): > > His name is “McBratney” not “McBrat.” The name is “bratwurst”, not “brat”. Right back atcha. > [@](#): > > I doubt that “McBrat” would be understood as short for “McBratney” by anyone except someone very familiar with the team and its ownership. I doubt that McBrat would be understood as short for “fictional bratwurst sandwich”. > [@](#): > > Your analogy is completely nonsensical and doesn’t respond to any point that I made. You conflated two separate points I made into one that I didn’t. Nonsense. It is you who are conflating two questions. 1. Did McBratney deliberately name his team “McBrats” for the purpose of impinging on McDonalds trademark? 2. Is it possible that _some_ people _might_ confuse “McBrats” for a McDonalds product? Those two AREN’T the same question. You act as though if (2) is true, then (1) has to be true. > [@](#): > > Determining the existence of likelihood of confusion requires consideration of a number of factors. The “big two” are the similarity of the marks and the similarity of the products or services. My point, which you didn’t get, was that “McBrat” is similar to the branding strategy used by McDonalds, What on EARTH are you talking about? Let’s recap, because you aren’t even in the ballpark any more. 1. You said “McBrat” sounds like a new McDonalds bratwurst product. 2. I said it’s a stretch to assume that’s how McBratney meant it. 3. You said it wouldn’t be “strange or far-fetched” for “McBrat” to evoke images of a bratwurst product made by McDonalds. 4.) I said just because it’s “not strange” doesn’t mean that’s how McBratney meant it. I have no idea what you’re going on about now, my friend. > [@](#): > > and that it could readily be perceived as referring to a new item on the McDonalds menu. I still think that’s a stretch. > [@](#): > > That association would arise _because_ of the “Mc” prefix. It’s not a question of whether every food product sold under any name would be perceived as referring to McDonalds. You’re still over-extending my analogy. Don’t know what more to say. > [@](#): > > Actually, that’s not what I’m discussing at all. You’re confusing an argument you’re having with me with one you were having with someone else. _You’re_ the one who’s confused. > [@](#): > > My analysis of the legal issues is completely independent of any question as to intent. I don’t care how McBratney intended it to be perceived. Then your entire exchange with me has been a gigantic strawman. Congratulations. > [@](#): > > It’s irrelevant to the issues I’m addressing. You don’t have to show intent to win on trademark infringement. You’re still arguing as to who you think will _win the case_. Why is this so hard to understand?: I’M NOT ARGUING THE CASE WITH YOU. I ASSUME YOU’RE SOME KIND OF LAWYER AND I WOULDN’T PRESUME TO CITE AN AREA OF LAW WITH WHICH I’M NOT FAMILIAR. Do…you…understand…me? > [@](#): > > It’s nice if you can show it, but it’s by no means needed to win. Never has been, never will be. You’re really missing the entire jist of this thread. **Princhester** thinks the whole thing was a ploy by McBratney to get McDonalds to sue him so he can get free publicity. PRINCHESTER thinks there was intent, and I said I don’t necessarily think that’s the case. YOU are trying to formulate a legal argument that has nothing to do with the conversation. And the _other_ issue is that you said: > [@](#): > > I would probably assume (as would a lot of people) that McDonalds had added Bratwurst to its menu and given it the name McBrat. It’s not at all a far stretch. And I disagreed with you. NOTE THAT THIS DOES NOT INVOLVE A LEGAL ARGUMENT. IT ONLY INVOLVES YOU SAYING WHAT YOU WOULD “ASSUME”, AND MY DISAGREEING WITH YOU. > [@](#): > > You’re dividing two concepts that are actually related. No I’m not. > [@](#): > > So, yes, the only criteria is whether there is any possibility of an appreciable number of consumers making the connection between “McBrat” and McDonalds. That’s what trademark infringement is. If that’s true, then it’s utterly stupid. > [@](#): > > And again, look back, I never said anything about his intent. I don’t have any reason to believe that he intended any confusion. I also don’t care. Then we quite simply aren’t discussing the same thing at all. ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 8:36am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/83 "2005-03-15T08:36:51Z")
I think you make some good points, Princhester, but I’m still not entirely convinced that McBratney intended anything other than to name the team after himself. > [@Princhester](#): > > Your post could be read as implying that one of the reasons the possibility I raise is unlikely is that McBratney would not risk the adverse consequences of action by McDonalds. You’re gonna have to quote the exact part where you think I said that, because I’m reasonably certain I never made nor implied such a point. ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 8:53am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/84 "2005-03-15T08:53:11Z")
> [@jeevmon](#): > > Trademark infringement (“impingement”) exists when likelihood of confusion (“possibility that someone might make a connection”) exists. Intent doesn’t enter into it. It’s not whether anyone might make the connection, it’s whether an appreciable number of consumers are likely to make that connection. That appreciable number doesn’t have to be 50%; even 20% or 10% could be sufficient. So, yes, the only criteria is whether there is any possibility of an appreciable number of consumers making the connection between “McBrat” and McDonalds. That’s what trademark infringement is. And by the way, just to get into the legal part of this for a minute, I take issue with what you said. [Trademark Infringement](http://www.bitlaw.com/trademark/infringe.html#factors) > [@](#): > > Eight factors for likelihood of confusion: To analyze whether a particular situation has developed the requisite “likelihood of confusion,” courts have generally looked at the following eight factors: > > 1. the similarity in the overall impression created by the two marks (including the marks’ look, phonetic similarities, and underlying meanings); > 2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods); > 3. the strength of the plaintiff’s mark; > 4. any evidence of actual confusion by consumers; > **5. the intent of the defendant in adopting its mark;** > 5. the physical proximity of the goods in the retail marketplace; > 6. the degree of care likely to be exercised by the consumer; and > 7. the likelihood of expansion of the product lines. So two of your statements, “Intent doesn’t enter into it”, and “the only criteria is whether there is any possibility of an appreciable number of consumers making the connection”, are patently false. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 15, 2005, 10:28am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/85 "2005-03-15T10:28:20Z")
> [@blowero](#): > > I think you make some good points, Princhester, but I’m still not entirely convinced that McBratney intended anything other than to name the team after himself. Just for the record, he just had “McBrat” stencilled on their asses in return for a donation. The team isn’t named after him. > [@](#): > > You’re gonna have to quote the exact part where you think I said that, because I’m reasonably certain I never made nor implied such a point. Chill, mate. From the outset I wasn’t sure if this was a point you were attempting to make or not, that’s why I said: “I’m not sure from your post whether you think that…” If you don’t, you don’t. Forget it. ---
**Author:** ![jeevmon](https://avatars.discourse-cdn.com/v4/letter/j/87869e/32.png) [@jeevmon](https://boards.straightdope.com/u/jeevmon)\ **Post date:** [March 15, 2005, 2:45pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/86 "2005-03-15T14:45:59Z")
> [@blowero](#): > > And by the way, just to get into the legal part of this for a minute, I take issue with what you said. > [Trademark Infringement](http://www.bitlaw.com/trademark/infringe.html#factors) > > So two of your statements, “Intent doesn’t enter into it”, and “the only criteria is whether there is any possibility of an appreciable number of consumers making the connection”, are patently false. You’re still wrong. Read what I said in its entirety, instead of picking out isolated sentences with which to take issue. I said that proving intent is not necessary to prove likelihood of confusion, which is an entirely true statement. _See e.g._, _AutoZone, Inc. v. Tandy Corp._, 373 F.3d 786, 799 (6th Cir. 2004) (“Proving intent is not necessary to demonstrate likelihood of confusion, but the presence of that factor strengthens the likelihood of confusion”). I then said that it is nice if you can prove it, but is not needed to win. _Id._. Entirely true statements. And you are the one who is greatly confused about what you’re arguing with whom. I never said McBratney intended to bait McDonalds or intended anything at all. You’re the one who read that into my post because you were arguing with **Princhester** about it. I was arguing whether McDonalds had a viable case, a point that you are apparently now conceding. The viability of McDonalds’ case is strengthened by proof of intent, but not undermined by its absence. ---
**Author:** ![Purd\_Werfect](https://avatars.discourse-cdn.com/v4/letter/p/e47c2d/32.png) [@Purd\_Werfect](https://boards.straightdope.com/u/Purd_Werfect)\ **Post date:** [March 15, 2005, 5:25pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/87 "2005-03-15T17:25:24Z")
After reading this thread, and an interesting one it is, what I wonder most is how the McDucks in Chicago manage to get away with their obvious attempt to encroach on both McDonalds and Disney’s trademarks. They might have been in existence before McDonalds, but I seriously doubt they precede Disney. ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 6:17pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/88 "2005-03-15T18:17:05Z")
> [@Princhester](#): > > Just for the record, he just had “McBrat” stencilled on their asses in return for a donation. The team isn’t named after him. I think we all know the facts of the case by now. You don’t need to keep rehashing them. > [@](#): > > Chill, mate. From the outset I wasn’t sure if this was a point you were attempting to make or not, that’s why I said: “I’m not sure from your post whether you think that…” I don’t know what you’re talking about. I gave no indication that I was upset in any way. I said, “You’re gonna have to quote the exact part where you think I said that, because I’m reasonably certain I never made nor implied such a point.” There is nothing non-“chilled” about the way I said it. Perhaps you’re projecting your _own_ anger? I don’t know. ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 7:00pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/89 "2005-03-15T19:00:13Z")
> [@jeevmon](#): > > I said that proving intent is not necessary to prove likelihood of confusion, which is an entirely true statement. _See e.g._, _AutoZone, Inc. v. Tandy Corp._, 373 F.3d 786, 799 (6th Cir. 2004) (“Proving intent is not necessary to demonstrate likelihood of confusion, but the presence of that factor strengthens the likelihood of confusion”). I then said that it is nice if you can prove it, but is not needed to win. _Id._. Entirely true statements. You _also_ said, “intent doesn’t enter into it”, and that was the statement which was incorrect. I quoted the entire paragraph in which you made the statement. I’m not going to quote _everything you ever wrote_; you certainly haven’t done that with my posts - that would clog up the thread. You have consistently portrayed the legal issue here as though _whether people might make a connection_ is the ONLY issue to consider. You’re actually quite wrong on that point. Now you’re just trying to backpedal. > [@](#): > > And you are the one who is greatly confused about what you’re arguing with whom. I never said McBratney intended to bait McDonalds or intended anything at all. You’re the one who read that into my post because you were arguing with **Princhester** about it. I did no such thing. My whole point all along was that the logic that says McBratney shouldn’t name his team after himself because people might think it’s a McDonalds hotdog that doesn’t exist, is preposterous. It’s not a legal opinion; just MY opinion. I can’t help it if you have a propensity to turn everything into a narrow legal argument. I know that’s how lawyers think, but it’s not how regular people think. Sometimes we say things like, “This is stupid” as opposed to “This is legal/illegal.” What’s REALLY incredible, though, is that after all your posturing about what the legal issues are, I finally looked them up, only to discover you’re wrong about _that_. And then you pathetically try to weasel out of what you said with some weak, “Well I said this _other_ thing too, so you took me out of context” argument, which is just so much flailing. > [@](#): > > I was arguing whether McDonalds had a viable case, a point that you are apparently now conceding. Actually, that’s backwards. If you had _read_ my posts, you would have seen that I conceded the point right from the start, because I deferred to your supposed superior knowledge. But now that I have looked it up, I question your interpretation of the law. > [@](#): > > The viability of McDonalds’ case is strengthened by proof of intent, but not undermined by its absence. That’s backpedaling. Saying, “You _could_ prove your case without X element” is not equivalent to “X element doesn’t matter”. It’s really kind of hard to argue with you, because you keep acting as though I’ve said things I never said. You don’t seem to follow the flow of the discussion, nor be able to seperate out which issue is currently being discussed. You made a statement that you believed it likely that people would think “McBrat” was a McDonald’s sandwich. I disagreed, and then you responded by saying “it wouldn’t be that strange”. Then I pointed out that “not being strange” doesn’t mean it’s true: It wouldn’t be “strange” for people to think McBrat is a McDonalds sandwich, but nevertheless, I doubt an appreciable number of people would believe so. **Essured** agreed with me, by the way. So then I made _an analogy_ to show that yes, X thing can be “not strange” but still not be very plausible. So then you, completely out of the blue, said the thing in the analogy didn’t have “Mc” in it. 😕 :eek: That had nothing to do with the particular point I was making. But you don’t seem to grasp that at all. Then you just started babbling about my analogy being “nonsensical”. I’m sure it was nonsensical to _you_, because you weren’t following the train of thought. I’m sure you’re a very knowledgeable guy; it’s just that your focus seems to wander a lot. ---
**Author:** ![jeevmon](https://avatars.discourse-cdn.com/v4/letter/j/87869e/32.png) [@jeevmon](https://boards.straightdope.com/u/jeevmon)\ **Post date:** [March 15, 2005, 8:27pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/90 "2005-03-15T20:27:21Z")
> [@blowero](#): > > You _also_ said, “intent doesn’t enter into it”, and that was the statement which was incorrect. I quoted the entire paragraph in which you made the statement. I’m not going to quote _everything you ever wrote_; you certainly haven’t done that with my posts - that would clog up the thread. You have consistently portrayed the legal issue here as though _whether people might make a connection_ is the ONLY issue to consider. You’re actually quite wrong on that point. Now you’re just trying to backpedal. Not at all. Whether an appreciable number of consumers are likely to make the connection, i.e. mistakenly believe that McDonalds sponsored, approved of, or is associated with “McBrat” _is_ the question. Trademark infringement is inseparable from likelihood of confusion. They’re not separate things; they’re the same thing. This is the point that you seem to be missing. The factors you cited are not separate questions. They are factors considered as a means of resolving the likelihood of confusion question. Intent is not a separate factor standing alone. Bad intent can be seen as stronger evidence of likelihood of confusion (on the theory that if you intended to cause confusion, the law will presume that you succeeded or were likely to succeed), but absence of bad intent does not make the likelihood of confusion case weaker. It is irrelevant to things like the similarity of the marks, the similarity of the products, and the similarity of the trade channels. And its absence is irrelevant to the ultimate likelihood of confusion inquiry. > [@](#): > > What’s REALLY incredible, though, is that after all your posturing about what the legal issues are, I finally looked them up, only to discover you’re wrong about _that_. And then you pathetically try to weasel out of what you said with some weak, “Well I said this _other_ thing too, so you took me out of context” argument, which is just so much flailing. > > . . . > > Actually, that’s backwards. If you had _read_ my posts, you would have seen that I conceded the point right from the start, because I deferred to your supposed superior knowledge. But now that I have looked it up, I question your interpretation of the law. You took ONE SENTENCE out of what I said, represented it as my central thesis, and ignored the clarifying explanation that immediately preceded it. This is a dishonest and pathetic form of argument. I was clear about the significance of intent. I was clear about it in the same post from which you excerpted the sentence you excerpted. And I am _right_ about the significance of intent, in a way that you are not. It’s not my fault that you have to rely on out of context quoting to make your point. > [@](#): > > That’s backpedaling. Saying, “You _could_ prove your case without X element” is not equivalent to “X element doesn’t matter”. It’s not backpedaling when I said it in the same post you quoted. You took one sentence that you could nitpick, and ignored the clarifying explanation that preceded it. Which were made, again, in the SAME POST. You don’t have to quote everything I say, but you should at least be honest about what you do quote. > [@](#): > > It’s really kind of hard to argue with you, because you keep acting as though I’ve said things I never said. You don’t seem to follow the flow of the discussion, nor be able to seperate out which issue is currently being discussed. You made a statement that you believed it likely that people would think “McBrat” was a McDonald’s sandwich. I disagreed, and then you responded by saying “it wouldn’t be that strange”. Then I pointed out that “not being strange” doesn’t mean it’s true: It wouldn’t be “strange” for people to think McBrat is a McDonalds sandwich, but nevertheless, I doubt an appreciable number of people would believe so. **Essured** agreed with me, by the way. So then I made _an analogy_ to show that yes, X thing can be “not strange” but still not be very plausible. So then you, completely out of the blue, said the thing in the analogy didn’t have “Mc” in it. 😕 :eek: That had nothing to do with the particular point I was making. But you don’t seem to grasp that at all. Then you just started babbling about my analogy being “nonsensical”. I’m sure it was nonsensical to _you_, because you weren’t following the train of thought. Your analogy was nonsensical because, again, you responded to a minor choice of phrase instead of a substantive point. You were not following my train of thought, and in the process we were both derailed. I was addressing how McBrat might be perceived by those viewing it, and speculated that a number of people might well view “McBrat” as the name of a new McDonalds product. You equated the possibility of people considering “McBrat” as being associated with McDonalds as being as remote as people considering “Packer” as being associated with McDonalds. This is a false analogy, because the only reason that “McBrat” can be plausibly associated with McDonads is because of the “Mc” prefix. And there are very reasonable grounds to believe that consumers might associate “McBrat” with McDonalds: (1) The name mimics McDonalds’ branding strategy of Mc + noun. That may not have been the intent, but it’s there all the same. This is a well-recognized branding strategy around the world. In one noteworthy case, McDonalds submitted a survey showing that a significant percentage of consumers associated “McSleep” as a name for hotels, with McDonalds, which does not even offer hotel services. So the idea that “McBrat” might be viewed as being associated with McDonalds is grounded in real evidence that consumers associate Mc + noun with McDonalds. (2) “Brat” is a recognized abbreviation for “bratwurst” as well as other things. Which meaning comes to mind first depends on context. There is a reasonable possibility that a relevant percentage of consumers would associate “McBrat” with a new McDonalds product. You might not, **Essured** might not, but there are people out there who would, and perhaps in large enough numbers to be legally significant. (3) Then we have how and where “McBrat” is used. On sporting apparel. The tradition of selling space on sports apparel to advertisers is well-established, and McDonalds is known as a company that does a lot of sports-related advertising. These are all reasons why “McBrat” could be perceived as a term associated with McDonalds. Not all consumers will make this association, and it may well be that less than 50% do. But somewhere between 0 and 50% is a number that will be deemed significant by a court. It could be 5%, 10%, or 20%, but it is there. “Packer” does not share any of the attributes that create an association with McDonalds. It does not mimic McDonalds’ branding strategy, and it requires a much bigger mental leap to go from “Packer” to anything relating to food than it does to go from “brat” to “bratwurst.” So it is relevant to the point I was actually making that “McBrat” mimics McDonalds’ branding strategy. Your analogy was false because it missed that point entirely, again because you took a minor choice of phrase about “strangeness” and elevated it to the level of a major argument. ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [March 15, 2005, 10:23pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/91 "2005-03-15T22:23:18Z")
> [@jeevmon](#): > > Not at all. Whether an appreciable number of consumers are likely to make the connection, i.e. mistakenly believe that McDonalds sponsored, approved of, or is associated with “McBrat” _is_ the question. Trademark infringement is inseparable from likelihood of confusion. They’re not separate things; they’re the same thing. This is the point that you seem to be missing. I’m not missing _anything_. What you are missing (and I don’t think you’re actually missing it; you’re just being willfully obtuse), is that there are _many_ factors, ALL OF WHICH bear on the issue, and which affect _each other_. It is not just one issue. And one is an _element_ of the other; they are not “the same thing”. Again, you seem to have a different argument running inside your head than the one we are actually having. I guess you must be confusing when I said you seem to have trouble _separating out what the gist of the argument is_, with the strawman that I believe each element of trademark infringement is unrelated to the others (separate). I believe no such thing. > [@](#): > > The factors you cited are not separate questions. They are factors considered as a means of resolving the likelihood of confusion question. Intent is not a separate factor standing alone. Of course not. There are many factors that would be considered, all of which affect each other. NONE of them stands alone. Exactly my point. > [@](#): > > Bad intent can be seen as stronger evidence of likelihood of confusion (on the theory that if you intended to cause confusion, the law will presume that you succeeded or were likely to succeed), but absence of bad intent does not make the likelihood of confusion case weaker. That sentence is self-contradictory. If X makes a case stronger, then absence of X must by definition make the case _less_ strong. > [@](#): > > It is irrelevant to things like the similarity of the marks, the similarity of the products, and the similarity of the trade channels. And its absence is irrelevant to the ultimate likelihood of confusion inquiry. But the POINT is that “whether people might confuse the products” is not the only issue to be considered. > [@](#): > > You took ONE SENTENCE out of what I said, represented it as my central thesis, and ignored the clarifying explanation that immediately preceded it. I disagree. That is not what I did. > [@](#): > > This is a dishonest and pathetic form of argument. It would be if I had done that. But I didn’t. > [@](#): > > It’s not backpedaling when I said it in the same post you quoted. You took one sentence that you could nitpick, and ignored the clarifying explanation that preceded it. Which were made, again, in the SAME POST. You don’t have to quote everything I say, but you should at least be honest about what you do quote. It was not a nitpick. You have given a general impression that whether people will be confused is the _only_ issue here, and it’s not. > [@](#): > > Your analogy was nonsensical because, again, you responded to a minor choice of phrase instead of a substantive point. You were not following my train of thought, and in the process we were both derailed. I responded to ALL your points, both minor AND substantive. If we are disallowed from addressing individual points, an argument quickly reduces to “no it isn’t”/ “yes it is”. > [@](#): > > I was addressing how McBrat might be perceived by those viewing it, and speculated that a number of people might well view “McBrat” as the name of a new McDonalds product. You equated the possibility of people considering “McBrat” as being associated with McDonalds as being as remote as people considering “Packer” as being associated with McDonalds. Wrong. I equated the possibility of people considering “McBrat” as being associated with A NON-EXISTENT SAUSAGE SANDWICH PRODUCT as being as remote as people considering “Packer” as being associated with a non-existent hamburger product. Don’t make arguments if you don’t want them refuted. > [@](#): > > This is a false analogy, because the only reason that “McBrat” can be plausibly associated with McDonads is because of the “Mc” prefix. Again, that’s irrelevant to the argument I was making. > [@](#): > > And there are very reasonable grounds to believe that consumers might associate “McBrat” with McDonalds: > > (1) The name mimics McDonalds’ branding strategy of Mc + noun. That may not have been the intent, but it’s there all the same. This is a well-recognized branding strategy around the world. In one noteworthy case, McDonalds submitted a survey showing that a significant percentage of consumers associated “McSleep” as a name for hotels, with McDonalds, which does not even offer hotel services. So the idea that “McBrat” might be viewed as being associated with McDonalds is grounded in real evidence that consumers associate Mc + noun with McDonalds. But if this goes to trial, the defendant will argue that “Mc” is the prefix of HIS NAME, the use of which pre-dates McDonalds. It’s similar to, say, Mr. Johnson opening “Johnson Hardware”, and being sued by Albertson’s supermarket, because “son” appears in the name. It’s obviously not exactly the same as that (so please refrain from stating the obvious), but it’s certainly an issue that will come up in a trial, and not the slam-dunk for McDonalds you seem to believe it is. > [@](#): > > (2) “Brat” is a recognized abbreviation for “bratwurst” as well as other things. Which meaning comes to mind first depends on context. There is a reasonable possibility that a relevant percentage of consumers would associate “McBrat” with a new McDonalds product. You might not, **Essured** might not, but there are people out there who would, and perhaps in large enough numbers to be legally significant. You misunderstand. We didn’t just say WE don’t make the association; we said that we DISAGREE with your belief that any significant number of people would. At any rate, it’s an issue to be determined at trial, not a foregone conclusion. > [@](#): > > (3) Then we have how and where “McBrat” is used. On sporting apparel. The tradition of selling space on sports apparel to advertisers is well-established, and McDonalds is known as a company that does a lot of sports-related advertising. > > These are all reasons why “McBrat” could be perceived as a term associated with McDonalds. Not all consumers will make this association, and it may well be that less than 50% do. But somewhere between 0 and 50% is a number that will be deemed significant by a court. It could be 5%, 10%, or 20%, but it is there. Yes, and that would be _one factor_ that would have a bearing on the case, in addition to _other factors_. You’re forgetting two salient features of this case. ONE is that “Mc” IS the actual prefix of the guy’s name, and TWO is that He didn’t actually use the name “McDonalds”. Therefore it’s NOT an open-and-shut case. He would most certainly argue that McDonalds cannot co-opt what is a traditional prefix for people’s names. IF he had used McDonalds’ actual name, and not just part of it, it would be an open-and-shut case And IF “Mc” wasn’t part of HIS name, it would be an open-and-shut case. But neither is true, so those would be issues to be determined at trial. You can argue that you believe it’s a strong case for McDonalds, but you can’t say that it COMPLETELY HINGES on whether people would associate it with McDonalds. That would not be the only issue that would be brought in a trial. > [@](#): > > “Packer” does not share any of the attributes that create an association with McDonalds. It does not mimic McDonalds’ branding strategy, and it requires a much bigger mental leap to go from “Packer” to anything relating to food than it does to go from “brat” to “bratwurst.” So it is relevant to the point I was actually making that “McBrat” mimics McDonalds’ branding strategy. Your analogy was false because it missed that point entirely, again because you took a minor choice of phrase about “strangeness” and elevated it to the level of a major argument. No I did not. YOU elevated it. I only offered it as a means to counter ONE minor point that you made. I was very clear as to what I was arguing. I can’t help it if you want to read more into things than is there. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 15, 2005, 10:55pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/92 "2005-03-15T22:55:54Z")
> [@blowero](#): > > I think we all know the facts of the case by now. You don’t need to keep rehashing them. If we all know the facts, how come you mentioned at post 84 and then _again even after I corrected you and you said everyone knew the facts_ at post 89 that McBratney named the team after himself, when he didn’t? ---
**Author:** ![jeevmon](https://avatars.discourse-cdn.com/v4/letter/j/87869e/32.png) [@jeevmon](https://boards.straightdope.com/u/jeevmon)\ **Post date:** [March 15, 2005, 11:06pm UTC](https://boards.straightdope.com/t/get-mcfucked/294006/93 "2005-03-15T23:06:18Z")
> [@blowero](#): > > I’m not missing _anything_. What you are missing (and I don’t think you’re actually missing it; you’re just being willfully obtuse), is that there are _many_ factors, ALL OF WHICH bear on the issue, and which affect _each other_. It is not just one issue. And one is an _element_ of the other; they are not “the same thing”. “Likelihood of confusion” is not an element of “likelihood of confusion.” It is the same thing. You are missing something critically important if your position is that "likelihood of confusion is only of a multiplicity of the factors considered in determining trademark infringement. But don’t take my word for it - let’s look at your source ([Trademark Infringement (BitLaw)](http://www.bitlaw.com/trademark/infringe.html#elements)): > [@](#): > > The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant’s use of a mark has _created a likelihood-of-confusion about the origin of the defendant’s goods or services._ To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that _the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public._ The confusion created can be that the defendant’s products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff. (emphasis added) So, likelihood of confusion IS the issue. It’s not “one of many issues.” It is THE issue. > [@](#): > > That sentence is self-contradictory. If X makes a case stronger, then absence of X must by definition make the case _less_ strong. No. The absence of X in this case makes the case neutral. The purpose of trademark law is to protect consumers from confusion, mistake or deception. If intent to create that confusion can be shown, it strengthens the case because the law assumes that the person who intends to cause confusion has succeeded or will likely succeed in doing so. However, a case where bad intent cannot be proven will not be one in which confusion will be assumed to be less likely. If you want to think in terms of mathematics, intent to confuse is +1, but its absence is 0, not -1. > [@](#): > > But the POINT is that “whether people might confuse the products” is not the only issue to be considered. Yes it is. Perhaps you are confused by the inclusion of the element of “actual confusion” in the test for likelihood of confusion? Actual confusion and likelihood of confusion are different. If actual confusion is shown, it greatly strengthens a case. If no actual confusion is shown, the relevance can vary. In some cases, there is no evidence either way as to actual confusion, in which case that factor weighs as 0. If the defendant can affirmatively show an absence of actual confusion, the case for likelihood of confusion is weaker. > [@](#): > > It was not a nitpick. You have given a general impression that whether people will be confused is the _only_ issue here, and it’s not. Yes it is. The factors you recited as elements of “trademark infringement” are what are considered in determining whether this confusion is likely to arise. I don’t know how to make this clearer to you. You seem to be arguing that there is likelihood of confusion and then a whole bunch of other stuff. There isn’t. There is likelihood of confusion, and everything you recite factors into that inquiry. But at the end of the day, likelihood of confusion is the question, not simply one of many factors. > [@](#): > > But if this goes to trial, the defendant will argue that “Mc” is the prefix of HIS NAME, the use of which pre-dates McDonalds. It’s similar to, say, Mr. Johnson opening “Johnson Hardware”, and being sued by Albertson’s supermarket, because “son” appears in the name. It’s obviously not exactly the same as that (so please refrain from stating the obvious), but it’s certainly an issue that will come up in a trial, and not the slam-dunk for McDonalds you seem to believe it is. This isn’t a separate issue - it’s part of the likelihood of confusion inquiry. It goes to the strength of the mark and the recognition of the “Mc”+ branding strategy. There is no absolute right to use of one’s name commercially, and I highly doubt that McBratney was making substantial commercial use of his name to identify the source of products and services before McDonalds. So while this would come up as an issue, it is not a separate question from likelihood of confusion - it’s part of the inquiry. > [@](#): > > You’re forgetting two salient features of this case. ONE is that “Mc” IS the actual prefix of the guy’s name, and TWO is that He didn’t actually use the name “McDonalds”. Therefore it’s NOT an open-and-shut case. He would most certainly argue that McDonalds cannot co-opt what is a traditional prefix for people’s names. He may argue that. And McDonalds will argue that the Mc+ noun structure has become associated with their products. And McDonalds has done a lot of surveys over the years to show that is the case. Again, it gets down to what McDonalds can show about the strength and recognition of its marks and the other likelihood of confusion factors. It doesn’t matter whether or not he used McDonalds- all that matters is whether he used something that is likely to be confused with McDonalds. > [@](#): > > But neither is true, so those would be issues to be determined at trial. You can argue that you believe it’s a strong case for McDonalds, but you can’t say that it COMPLETELY HINGES on whether people would associate it with McDonalds. That would not be the only issue that would be brought in a trial. All of the things you recite would be considered as part of the likelihood of confusion inquiry. At the end of the day, it’s what has to be determined. These “issues” all factor into the inquiry. They’re not separate inquiries or issues. Likelihood of confusion is what matters. The case does completely hinge on likelihood of confusion because that’s what trademark infringement is. A lot goes into that analysis, but if McDonalds can show that an appreciable (i.e. non-deminimus) number of consumers are likely to believe that McDonalds sponsored, approved, or is otherwise associated with the use of “McBrat,” it will win. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [October 27, 2015, 4:39am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/94 "2015-10-27T04:39:51Z")
I probably shouldn’t revive this old thread just for this purpose, but anyway… Given that the link in the OP is dead, I’ll recap. A Brisbane lawyer called Malcolm McBratney sponsored a local football team and had “McBrat” stencilled on the shorts of the team. McDonalds then sent a “cease and desist” letter in defence of their purported IP rights over all things “Mc” I noticed this story on a news site today: > **[Queensland father drove drunk with daughter](https://www.brisbanetimes.com.au/national/queensland/queensland-father-drove-drunk-with-daughter-20151027-gkjm75.html)** > > Man seen falling from car outside fish and chip shop. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [October 27, 2015, 4:59am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/95 "2015-10-27T04:59:10Z")
Jesus. Driving with a 0.32 BAC? I don’t know how he even managed to get the car started. Are there any likely consequences for his ability to practice law? What’s the connection, in Australia, between a conviction like this and your privileges as a solicitor? ---
**Author:** ![Robot\_Arm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robot_arm/32/18280_2.png) [@Robot\_Arm](https://boards.straightdope.com/u/Robot_Arm)\ **Post date:** [October 27, 2015, 5:04am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/96 "2015-10-27T05:04:28Z")
> [@Princhester](#): > > I probably shouldn’t revive this old thread just for this purpose, but anyway… > > Given that the link in the OP is dead, I’ll recap. A Brisbane lawyer called Malcolm McBratney sponsored a local football team and had “McBrat” stencilled on the shorts of the team. McDonalds then sent a “cease and desist” letter in defence of their purported IP rights over all things “Mc” > > I noticed this story on a news site today: > > [Queensland father drove drunk with daughter](http://www.brisbanetimes.com.au/queensland/queensland-father-drove-drunk-with-daughter-20151027-gkjm75.html) You remembered this thread from ten years ago? ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [October 27, 2015, 6:25am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/97 "2015-10-27T06:25:05Z")
> [@mhendo](#): > > Are there any likely consequences for his ability to practice law? What’s the connection, in Australia, between a conviction like this and your privileges as a solicitor? Interesting question. A basic “driving under the influence” is not enough to affect your ability to practice law. I don’t think even a dangerous driving charge would be. Apparently (according to another news story) he said he is a recovering alcoholic and is in treatment. If every lawyer was prevented from practice due to being a recovering alcoholic, half the profession would disappear ;). > [@Robot\_Arm](#): > > You remembered this thread from ten years ago? Apparently. Yet if you told me your real name I probably would have forgotten five minutes later. My memory is weird. Sigh. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [October 27, 2015, 6:37am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/98 "2015-10-27T06:37:14Z")
Classic McDUI. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [October 27, 2015, 6:38am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/99 "2015-10-27T06:38:46Z")
You will be getting a stern letter from McDonalds’ lawyers shortly, **Rigmarole**. ---
**Author:** ![Sunny\_Daze](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sunny_daze/32/438_2.png) [@Sunny\_Daze](https://boards.straightdope.com/u/Sunny_Daze)\ **Post date:** [October 27, 2015, 6:46am UTC](https://boards.straightdope.com/t/get-mcfucked/294006/100 "2015-10-27T06:46:56Z")
Good god. I was hoping for a happier update when I noticed the bump. At least, a) bystanders had the sense to call the police, and b) his **10-year-old** daughter had the sense not to let him drive. I’m glad he’s in treatment. Can his family get a little support too? 10 year old’s ought not to have to know when daddy’s too drunk to drive home from the fish shop. [Previous page](https://boards.straightdope.com/t/get-mcfucked/294006.md?page=4) [Next page](https://boards.straightdope.com/t/get-mcfucked/294006.md?page=6)