Kid=Brat?

There's a post on Stay Free! about a Guardian article reporting McDonald's efforts to block an Australian rugby enthusiast from registering his nickname as a Trademark for clothing promoting the rugby team he sponsors. The guy's name is Malcom McBratney. His nickname is McBrat which McDonald's claims is confusingly similar to its mark, McKids (which it has only used for toys, never clothing).

The twist is that in addition to being a rugby enthusiast, McBratney is also a trademark attorney. He isn't budging and is arguing that McDonald's has abandoned the McKids mark.

This should be interesting. The very first case I read in trademark class was Quality Inns Int'l v. McDonald's Corp., 695 F. Supp. 198 (D. Md. 1988). In that case, McDonald's went after Quality Inns for a low budget hotel concept called "McSleep Inns." That court held that the prefix "Mc" plus a generic term is a very strong coined mark, and therefore entitled to wide protection. Third party uses of Mc*generic* were not indicative of McDonald's abandonment, but merely probative of the strength of the mark. Since we all know just how strong consumer recognition of McDonald's is (the survey in the case found 100% recognition in consumers it polled), Quality Inns didn't have a chance.

However, I think an important factor in that case was the considerable evidence of bad faith on the part of Quality Inns--that they specifically chose that name for its potential association with McDonalds.

In that respect, I can only hope that the Australian trademark office sees things differently, and that it gives consumers some credit for being able to differentiate between McBrat for rugby clothing and McKids for toys.