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Friday, May 1, 2009

McCurry v McDonalds

In total agreement with the decision by Gopal Sri Ram.

I find it difficult to understand how could McCurry passed off the good name of McDonalds. His Lordship opined that the fact that McCurry Restaurant chose the name ‘McCurry’, could not, by itself, lead to the inference that it sought to obtain an unfair advantage from the usage of the prefix ‘Mc’.

Good decision.

The ‘c’ is back in McCurry Restaurant

By ROYCE CHEAH


KUALA LUMPUR: P. Suppiah cannot stop smiling as he stuck the alphabet ‘c’ back onto the signboard of his shop.

That simple gesture by the owner of McCurry, an Indian restaurant in Jalan Ipoh, marked the happy ending to his eight-year David and Goliath court case against US fast food giant McDonald’s.

For years, Suppiah’s outlet was known as M Curry as he fought a suit filed in 2001 by the fast food chain to stop him from using the ‘Mc’ prefix, claiming the name could cause confusion and lead people to associate his products with McDonald’s.

Suppiah lost the first round after the High Court ruled in McDonald’s favour in 2006. However, round two went to him on Monday when the Court of Appeal held that there was no evidence to show McCurry Restaurant was passing off McDonald’s business as its own.

“We were almost losing hope, but we are glad that the decision was in our favour,” Suppiah’s wife, Kanageswary, said.

The restaurant serves a variety of Indian food including tosai, roti canai, North Indian cuisine and common Western dishes like hot dogs.

Suppiah said the name of the restaurant was meant to be an abbreviation of Malaysian Chicken Curry, adding it was coincidental that it ended up with the ‘Mc’ prefix.

“McCurry is also an existing Scottish name,” he said, adding that their logo of a chicken with both thumbs up was also vastly different from the famed Golden Arches.

Regular customer, Mohd Radzi, said as long as the food was good, it did not matter what the name of a restaurant was. “But I am happy that justice has been served for a place where I can read my newspapers and enjoy good food.”

In its statement of claim, McDonald’s said it created the prefix ‘Mc’ as a trademark and that with the usage of the prefix ‘Mc’, together with the word ‘Curry’, McCurry Restaurant, which was formerly known as Restoran Penang Curry House (KL) Sdn Bhd, had misrepresented itself as being associated with McDonald’s business.

The Court of Appeal disagreed.

Judge Datuk Gopal Sri Ram, in delivering judgment, said McCurry’s Restaurant signboard would not result in reasonable persons associating McCurry with the McDonald’s mark.

He added that the fact that McCurry Restaurant chose the name ‘McCurry’, could not, by itself, lead to the inference that it sought to obtain an unfair advantage from the usage of the prefix ‘Mc’.

Still, the nightmare may not be over as McDonald’s still have the right to file an appeal against the decision in the Federal Court.

3 comments:

Wawa said...

IMHO, McCurry shlud only allowed to use MCCurry with capital C after M.

Desmond Ho said...

actually I think the decision is based solely on the Facts of the case as there were no attempts to pass off any "goods' or "services".

It would not be a blanket approval for anyone else to use the mark Mc.

Richard Baron said...

The recent McDonald's v. McCurry ruling is not surprising. Just by the three main DuPont factors alone, appearance, sound and meaning, these two marks are arguably not confusingly similar. Add to that the difference in menus, and the difference in trade dress, and you have a pretty strong case for McCurry, which the panel seemingly accepted. The letters "Mc" cannot be totally, exclusively owned by one entity worldwide. And it's not as if people are going to mix up McCurry with McDonalds. Now, if McCurry used the golden arches, had a clown and similar characters associated with the restaurant, that would be problematic. Those elements were not present in this case. On our site, http://www.trademarksprotected.com, we help with these trademark issues and any trademark questions.