McDonald's final defeat by McCurry

The IPKat has learned from The Star that McDonald's has lost its final appeal against a Malaysian restaurant's use of the name McCurry (see previous coverage from the IPKat here). The Malaysian Federal Court refused leave to appeal against an earlier decision holding that confusion between the fast food chain and McCurry, which sells Malaysian chicken and fish head curries, was unlikely. McDonald's was also ordered to pay costs after failing to adquately explain how the earlier decision was flawed.

The IPKat has a sneaking sympathy for McDonald's here. He agrees that confusion is unlikely (he can't see fish heads appearing on McDonald's menus any time soon). However, he can't help but wonder if there wasn't just a tiny intention to create an association. Even if the 'Mc' stands for 'Malysian Chicken' as the owner has suggested, isn't it a little odd that a small 'c' is used. What really puzzles the IPKat though is whether an association with McDonald's would really help to shift chicken curry.

"McCurry is also an existing Scottish name"...

From Malaysia reaches us the news of the outcome of an "eight year trade mark battle" over the use of the mark "McCurry" for restaurant services between P. Suppiah the owner of an Indian restaurant in Jalan Ipoh, Malaysia and fast food giant McDonald's.

According to a report by Malaysian news site "The Star" McDonald's filed a law suit against Mr. P. Suppiah in 2001 trying to stop him from using the prefix "Mc" because it could cause confusion and could lead consumers to associate his "McCurry Restaurant"restaurant with McDonald’s. The problems appear to have started after Mr. Suppiah re-branded his restaurant as "McCurry"; after it had previously been known under the perhaps less evocative name "Restoran Penang Curry House (KL) Sdn Bhd".

McDonald's reportedly argued that the prefix "Mc" had to be considered as a trade mark and that through the use of the prefix "Mc", in combination with the word "Curry", McCurry Restaurant had misrepresented itself as being associated with McDonald’s. While the first instance court had initially ruled in McDonald’s favour in 2006, the Court of Appeal has now decided in Mr. Suppiah favour.

Artwork from deviantart.com

While the IPKat can see some merit in McDonald's arguments, particularly because Mr. Suppiah's restaurant not only served Indian food but also "common Western dishes like hot dogs" and apparently used the colours yellow and red for his restaurant's get up, the Malaysian Court of Appeal disagreed. Judge Datuk Gopal Sri Ramis is cited as saying that "reasonable persons" would not associate McCurry with the McDonald’s mark. The judge reportedly added that the fact that McCurry Restaurant chose the name ‘McCurry’, could not by itself been interpreted that it sought to obtain an unfair advantage from the usage of the prefix ‘Mc’. The judge further emphasized that McDonald's did not have a monoploy in the prefix Mc:

"... you have to look at the plaintiff's getup or logo as a whole ... it consists of a distinctive golden arched 'M' with the word, McDonald's, against a red background."

[In contrast] "... the defendant's (McCurry) signboard carried the words 'Restoran McCurry' with the lettering in white and grey on a red background with a picture of a chicken giving a double thumbsup and with the wording, 'Malaysian Chicken Curry'."

McDonald’s can file an appeal against the decision in the Malaysian Federal Court. According to a report by the Chicago Tribune, McDonald's is said to be disappointed with the court's ruling, but has so far declined to comment. And so, for the time being, the last word goes to happy Mr. Suppiah who is quoted as saying "McCurry is also an existing Scottish name".