CanvasShoes!
McBlasphemer!
Go get a Happy Meal and come back and Mctell me that with a straight Mcface!
Hehe…
Well, on the rare occasions I’ve had to, due to time and money restraints, eat there, to me, it tastes like salty greasy cardboard. The french fries that everyone raves about are hard, greasy, dry little sticks (I know, I know, how can something be greasy and dry at the same time, I don’t know, but they manage :D).
However, I will concede, that the other night, while doing “table rent” (I’m currently a bus rider) I was hungry right before a dance class I teach, so I took a chance and had a fish filet.
And it was, for once, in my experience, pretty darn tasty. But mostly I have had no luck there taste wise with the food.
But as I said, the shakes and homebaked cookies? OH yum. THOSE they do right.
“Let’s just get a McPizza.”
“McFine with me.”
OK, I was summoned to this thread.
Though McDonalds does occasionally overstep in its enforcement efforts, this is probably not one of them. First off, “McBrat” could very easily be a McDonald’s product. In the absence of any context, 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.
Second, McDonalds has a long history of advertising tying into sports. High school baseketball players, for example, covet the distinction of being named “McDonalds All-Americans.” In the U.S. and elsewhere, McDonalds pays big coin to land celebrity endorsers from the sports world, like Michael Jordan. McDonalds is a corporate sponsor of the Olympics. And so on. So while McDonalds doesn’t necessarily own a sports team, it certainly is involved in sports.
Third, this would be considered a commercial use because many teams in sports sell sponsors the right to have their logos emblazoned on the jerseys, etc. of the teams. NASCAR is obviously the most extreme example, but soccer and rugby also do the same thing. (Which is why I wonder if it’s really appropriate to call one team “Vodafone United.”) So it’s one that trips trademark law in the way that, for example, calling one player McBrat in a sports column because he’s simply one more in a line of essentially fungible, petulant players would not.
Finally, McDonalds has to be vigilant against the consequences of its success. The fact that Mc + noun has become associated with specific connotations (good, bad, or indifferent) is due almost entirely to McDonalds’ success and ubiquity. When Garry Trudeau describes USA Today as “News McNuggets” in the Doonesbury strip, the humor only arises because there is an association that people make when the “Mc” prefix appears in front of a noun. McDonalds has to take vigorous action against third party uses of the Mc+ noun form, because otherwise that form could be deemed generic, and could impact McDonalds’ entire branding strategy. Other companies do the same thing - XEROX, KLEENEX, FEDEX are all brand names that have the risk of becoming victims of their own success in a similar manner.
This is a case where McDonalds can and probably should be fairly aggressive, since the use in question will be seen by lots of spectators. Cases involving someone’s right to use their own name are slightly more problematic, but not really, and the solution is often a compromise that is very simple. Had Mr. McBratney put “M. McBratney” or “Malcolm McBratney” on the shorts, it might have been a slightly harder case, since the surnomial significance would have been clearer. But “McBrat” is a pretty straightforward case.
Yeah, I guess you do. Are you saying that his intent was to try to get McDonald’s to sue him so that he could get publicity, and the fact that McBrat happens to be an abbreviation of his name is just a fortunate coincidence that just happened to fit into his plan to enrage McDonald’s? Dunno…seems like a stretch to me.
Really? My first thought was “brat” as in a naughty child. To me, saying “brat” is short for bratwurst, without any real reason to assume that it is, and that bratwurst is an item that McDonald’s might conceivably sell, and that it therefore proves that the intent was to impinge, does seem like a stretch. It seems much more likely to me that, if there is a meaning behind shortening the name, that he’s likening the team to a group of misbehaving children rather than a group of sausages.
Funny - I actually like most of their food (I think they have the best tasting fries of any fast food chain, for example), but find their shakes to be the worst thing they sell. Go figure.
(Although In & Out burgers kick their ass hands down.)
I don’t doubt for a moment that you are right (in the legal sense) about what McD’s can do. But this comment just shows how IP is out of control.
Mc is the scottish term for “son of”. It’s a very very very common name prefix. That a commercial concern has any hope at all of enforcing something that effectively cordons off a pre-existing element of our language in this way sucks big ones. That you cannot use an abbreviation of your own, very common name, that isn’t even the same as a trademark holder’s trademark, but might conceivably be the same as a product that they might one day produce sucks big ones. Particularly as, when you analyse it, the reason McD’s have this problem is because they chose a very commonly used name as their trademark. No one made them. They are the ones who should suffer the consequences, not others whose name their name resembles.
Not only that but the “McBrat” in question was an amateurish stencil in plain letters in white across players asses. There is no way on the planet you could think it was associated with any big organisation, let alone McD’s.
And blowero I don’t think it’s that big a stretch. I don’t know if McBratney did it on purpose. That is just a theory that fits the facts known to me, but which could be wrong. Your objections don’t hold much water. IP lawyers like McBratney know what McD’s will do if you try to use a Mc name in advertising. They’ve been there. You are looking at it backwards. Imagine if you do have a Mc surname, and you are an IP lawyer. You think you wouldn’t have thought about what McD’s would do if you advertise with a Mc name? I would have. And it doesn’t take a great deal of imagination to figure out how you are going to work the populist angle into your press release: “local boy supporting local footie team getting picked on by overbearing multinational”.
I’m not sure from your post whether you think that McBratney wouldn’t do this because it makes no sense to cause the sky to fall on your own head. If that is what you are suggesting, you don’t understand the tactics of these skirmishes. Anyone like McBratney would know that while McD’s are going to fire a warning shot across his bows about something like this, as long as he capitulates at the appropriate moment, they are not going to actually sue him because they are not on strong enough ground, and their damages would be nominal.
Again, I’m not saying McBratney did plan the whole thing, but there’s certainly clues that point that way, and nothing that clearly points the other.
First off, trademark law is not really a form of IP, though it gets lumped in there. IP law deals in the realm of ideas and expressions. Trademark law is about fair competition. There is no “property” in a trademark except as it is associated with the goodwill of an ongoing business, product, or service. This gives rise to a number of rules that are particular to trademark law that do not arise in the context of copyright or patent law. As a simple example, if you license someone to use your trademark, you must exercise control over the licensee’s goods or services, or else risk forfeiting the mark entirely. No similar requirement exists under patent or copyright law.
McDonalds’ rights do not arise from the fact that it went out and registered their McDonalds and other trademarks. McDonalds’ rights arise from extensive use and advertising, and through a maniacal dedication to providing a consistent consumer experience everywhere in the world. As a result, to a significant percentage of consumers, “Mc” + noun, particularly a food or food-related noun, gives rise to association with McDonalds. McDonalds, in a very real sense, has earned broad goodwill by spending a lot of money to create this association in consumers’ minds and by launching a number of commercially successful products that share the “Mc” prefix. (a “family” of marks) Were we talking about McDonalds taking this action closer to the time of its initial establishment, then the idea that it chose a common name or prefix would have more weight. But we’re talking 2005. McDonalds has been in business for decades, and has steadily built up its rights and recognition. Someone coming in now can’t rely on any surnomial significance of the “Mc” prefix as the sole defense to its use, particularly where (as here) the term being used is not obviously a surname.
And this is perhaps the fundamental point - trademark law isn’t concerned with what consumers should believe or ought to believe, but what they actually or are likely to believe. Maybe consumers “should” believe that “Mc” simply is a Scottish prefix, but the fact is that commercial use of “Mc” plus a noun (which is what we are dealing with here) would give rise to an association with McDonalds in the minds of a significant number of consumers. More than 50%? Couldn’t tell you. But you don’t need to cross 50% to have a viable case, since lower numbers still represent a lot of people. Now, the flip side is also true - if someone can prove that consumers don’t actually perceive “McBrat” as representing McDonalds (or that a de minimus number of consumers make that association), then McDonalds’ case is very weak.
It is also extreme hyperbole to suggest that McDonalds has effectively “cordoned off” any part of speech. McDonalds’ rights only get implicated by commercial uses. Non-commercial uses are (generally speaking) entirely fair, and if someone makes a joke that relies on the associations that the “Mc” prefix conjures, that’s perfectly OK. That’s why McDonalds would have had no case if it sued Berke Breathed for the Bloom County strip quoted earlier, or Garry Trudeau for referring to USA Today as “News McNuggets” in a Doonesbury strip.
And, blowero, if I see the word “Brat” by itself, I might well make the association with a naughty child. But “McBrat,” absent any other context, sounds like a new McDonalds bratwurst product. The “Mc” prefix conjures up the second meaning of “brat” because of McDonalds’ presence in the food industry. And I’m sure I’m not the only one that would make that association in the real world that exists outside the SDMB.
To paraphrase Steve Martin’s old “I believe” bit, I believe the dispute should be settled with guns.
On the contrary, your theory doesn’t hold much water. Yes, it’s a theory that fits the facts, but so is “He named the team after his own name.” And I find that theory to be more likely.
Doesn’t mean his only purpose was to enrage McDonald’s.
I have no idea how you got that from my post. I didn’t say anything even remotely like that.
That could be his intention, but you have no proof.
I don’t see any clues; only conjecture on your part.
I disagree.
Maybe you’re not the only one, but I bet you’re in a minority. You said you would assume “that McDonalds had added Bratwurst to its menu and given it the name McBrat.” I see no reason to make such an assumption, when there is a more plausible alternate explanation. It’s a stretch because there are too many assumptions. You have to assume that it’s not just a shortening of his name to fit on the uniforms; you have to assume he didn’t mean it as a naughty child; you have to assume that Brat is short for Bratwurst; you have to assume that for some inexplicable reason, a rugby team is named after a sausage rather than after something human; you have to assume that McDonald’s added an unusual product to their menu; and you would have to never go to McDonald’s, since you would immediately see that there is no “McBrat” on their menu.
When I read the article, that wasn’t even close to my first thought. I have no doubt that McDonald’s could win the case; I’m sure they have some pretty crafty lawyers (and I wouldn’t be surprised if they fired the ones who botched the spilled coffee case years ago).
Oops, left off the end of that:
…but that doesn’t mean all your conjecture is true.
On the contrary, the fact that its a surname is not remotely obvious. All we’re seeing is the name “McBrat” on sports apparel. Companies pay a lot of money to advertise themselves on sports apparel, especially that worn by the teams during play. (Vodafone and Manchester United, for example). “Brat” is very frequently used as an abbreviation for “bratwurst.” And the idea that McDonalds may have added bratwurst to its menu, especially in Europe, is by no means strange. They introduce new products all the time. I don’t keep track of everything they have there at any given time, and bratwurst is not an unreasonable product line extension. And bratwurst are commonly available at sporting events in Europe and elsewhere. (I can buy bratwurst at any of Chicago’s major sporting arenas, for example.)
And it doesn’t matter if I’m in a minority, so long as it’s a large enough minority.
What do you mean by “on the contrary”? I did not say “it is remotely obvious”, so that statement is not contrary to mine.
So? People also put their own names on sports apparel. Your analogy doesn’t hold. Vodafone and Manchester United, I assume, are names of companies. “McBrats” is not the name of a company.
It’s also an even more frequently used name for a naughty child. It’s also an abbreviation of a person’s surname.
Didn’t say it would be “strange”. But you seem to be saying that so long as it’s somewhere in the realm of possibility, that we must assume that it’s true. Again, seems like a stetch to me. It makes about as much sense as thinking the Green Bay Packers are named after a McDonald’s sandwich that might exist. “The Packer”, a 1/2 pound burger packed with meat and cheese. It’s certainly possible, and wouldn’t be “strange”, but I don’t think “food product” when I hear the name Packers.
I just don’t see how that’s relevant. If your criteria is whether something might be a “reasonable” product line that McDonald’s might add to their menu, there’s a million things that would fit that criterea.
So?
Again, I’m not saying McDonald’s couldn’t win the case with superior attorney power, but I find the whole argument to be rather specious.
My point is that people are conditioned to seeing advertising on athletic apparel, especially soccer apparel. McDonalds is a major corporate sponsor of a number of sporting events around the world. People are used to seeing the McDonalds name and advertising for McDonalds’ products in sporting arenas. So it’s not at all strange or far-fetched to say that use of a designation that is similar in structure to the McDonald’s family of marks in a sporting context would give rise to an association with McDonalds.
The latter is not remotely obvious, and putting “Mc” in front of “Brat” changes the connotation. We’re not talking about “Brat” alone, but “Mc” + “Brat.”
Completely false analogy that shows that you have absolutely no clue. “Packer” doesn’t mimic McDonalds’ branding strategy. “McBrat” does.
Yes. It’s called goodwill and reputation. McDonalds’ name reputation and recognition is strongest in the area of food products and restaurant services. It has the right to prevent someone else from aping its branding strategy in those areas, and in any manner outside of food and restaurant services that might give rise to confusion as to McDonalds’ sponsorship or approval. Use of “Mc” branding on sporting uniforms is likely to give rise to such an association because of McDonalds’ extensive connections with the sporting world.
Ties back to the point I was making earlier, that there is no neat divorce that one can draw between food products, restaurant/ catering services, and sports. McDonalds is strongly associated with sports by virtue of its extensive sponsorships and advertising in association with sports and athletes.
While I know that many on the board would instinctively assume that if McDonalds does it or says it, it must be bad or false, it doesn’t mean that they don’t have a point sometimes. I don’t see this as an especially hard or difficult case for McDonalds - they’ve done a lot of consumer surveys showing that consumers associate “Mc+noun” with McDonalds. You may find the argument specious, and that’s your right. You may also believe that if McDonalds says the world is round, that it must, by definition, be flat. Doesn’t mean you’re right in either situation.
I presume you mean Ireland, right? 'Cause they aren’t MacDonalds.
Jeevmon, this incident occurred in Australia, not Europe. I would say 99.9% of Australians would think “undisciplined child” instead of “bratwurst”, upon hearing the word “brat”. Bratwurst is definitely considered a ‘foreign’ food here, unlike foreign foods which have ‘become naturalised’ like kebabs, stirfry, etc. If McDonalds added bratwurst to the menu here, it would get a WTF? response and minimal sales.
Bratwurst is not commonly available at sporting events in Australia. I have never seen any for sale, though maybe you can get it tucked into a corner at the supermarket, or maybe you have to go to a specialty store, but it is not a common food item over here. In this context it is an unreasonable product line extension.
The legal discussion you guys are having is interesting
It wouldn’t be at all strange to imagine that seeing clowns might give rise to an association with McDonalds, either. Should McDonalds sue Ringling Bros.? The logic doesn’t follow.
Don’t know what this “remotely obvious” meme is you’ve got going, but it seems MORE LIKELY that McBrat is an abbreviation of McBratney than that it’s a hot dog product that maybe McDonald’s might conceivably offer in Europe.
Again, it’s the guy’s NAME. If the guy’s name were not McBratney, then you might have a point.
Ah yes - and now he starts with the insults - a sure sign of someone who’s losing the argument.
Fallacy of the Extended Analogy. I offered the analogy to disprove a very specific point that you made (i.e., that “not being strange” makes a point ipso facto valid), not to suggest that “Packer” has anything to do with the “Mc” prefix. So let’s talk about who’s lacking a clue, eh?
Yes, we understand what an intellectual property suit is; don’t state the obvious. Right now, we’re discussing whether “McBrat” was intended as an obvious reference to a hypothetical food product that McDonald’s might sell. And you have come up with exactly zilch in the way of proving that. Sorry, but you got nothing.
Not the point. You seem to be saying that if there’s any possibility that anyone might make a connection between a name and McDonald’s, that they must be stopped from using that name, whether or not intent can be shown, and whether or not it’s actually an impingement. You seem to believe that the only criterea should be whether there’s any possibility of anyone making that connection. That’s ridiculous.
Strawman.
Maybe not. We’ve already conceded that point.
Sorry, but I just don’t find your argument convincing. Too many “maybes”.
Not only is that a strawman, but it’s not even close to reality. I am not “anti-McDonald’s” in any way. If you care to look up the thread I started on the coffee spill case, you’ll see that I actually defended McDonalds’ point of view in the face of some pretty venemous attacks against me.
I’m not anti-McDonalds, and I’m not trying to offer a legal opinion. I’m just trying to say that you guys haven’t convinced me of your contention that McBratney must have intended for people to associate his team name with the McDonalds corporation. It think there’s a perfectly logical alternate explanation, and you have failed to convincingly demonstrate otherwise.
Some years back in Syracuse, N.Y. there was a restaurant near the S.U. campus that offered a burger called the Whopper, allegedly predating the Burger King version.
The restaurateur got sued by Burger King, and after milking a little publicity out of the affair, gave in and renamed his creation the “Vopper”.
Not sure how successful that one was.
Ringling Bros. was first, so no. But leaving that aside, do an appreciable number of consumers associate all clowns with McDonalds? Probably not. Clowns with red hair and yellow suits, though, are a risk, especially if used in connection with food products.
His name is “McBratney” not “McBrat.” I doubt that “McBrat” would be understood as short for “McBratney” by anyone except someone very familiar with the team and its ownership.
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.
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, and that it could readily be perceived as referring to a new item on the McDonalds menu. 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.
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. 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. It’s irrelevant to the issues I’m addressing. You don’t have to show intent to win on trademark infringement. 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 dividing two concepts that are actually related. 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 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.
Does anyone recall that Bloom County once defined an Un-American as “someone who thinks McDonald’s hamburgers taste like masking tape”?
And this whole speech, while undoubtedly normal thinking in weird and wonderful world of the trademarkland, just shows how disconnected trademarkland is from ordinary values.
Because I think I’d be correct in saying that most people would listen to all that you say and think: “tough luck, McD’s, shoulda chosen a more distinctive name.”
Like probably most of the fans of this tiny social local footie club. And we are talking about a club far too small for anyone except fans to watch the games, by the way.
Good on you, your honour.
Why do you think McBratney bothered registering a trademark over a shortened version of his name for a A$1000 donation to buy uniforms for a social football team?
Knowing this:
what do you think McBratney thought was going to happen when he attempted to trademark McBrat? Of course, he might not have known this before he attempted to trademark. He’s an IP specialist. Pigs might fly.
And I’ve never said that it was. I have however suggested that getting free front page publicity for a brand new IP practice mightn’t be such a bad thing, eh?
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.