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Published: Wednesday April 29, 2009 MYT 6:27:00 PM
PUTRAJAYA: Fast food chain McDonald’s Wednesday lost its exclusivity to the use of the prefix “Mc” when the Court of Appeal here allowed a local Indian food outlet, McCurry Restaurant, to use “Mc” in its business signage.
Appeal Court judges Datuk Gopal Sri Ram (now Federal Court judge), who sat with Justices Datuk Heliliah Mohd Yusof and Datuk Sulong Matjeraie, held that there was no evidence to show that McCurry Restaurant of Jalan Ipoh, Kuala Lumpur, was passing off McDonald’s business as its own.
“Where the learned judge, with respect, erred is to assume that McDonald’s had a monopoly in the use of the prefix ‘Mc’ on a signage or in the conduct of business.
“In my judgment, the irresistible inference to be drawn from the totality of the evidence is that McCurry’s Restaurant signboard would not result in reasonable persons associating McCurry with the McDonald’s mark.
“For the reasons given, I would allow McCurry Restaurant’s appeal and reverse the findings of the learned judge,” said Sri Ram in his 18-page written judgement.
He said 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.”
“You have to look at the plaintiff’s (McDonald’s) getup or logo as a whole ... it consists of a distinctive golden arched ‘M’ with the word, McDonald’s, against a red background.
“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.’
“Thus, the defendant’s presentation of its business is in a style and getup which is distinctly different from that of the plaintiff,” said Sri Ram, adding that none of the food items on the menu card served at McCurry Restaurant carried the prefix ‘Mc’ unlike the items of food available at McDonald’s.
“It would have been different if McCurry Restaurant had offered to its customers, items that were labelled either the same as or similar to those sold by McDonald’s, for example McFish or McLamb,” he said.
Sri Ram also said that the type of food available at a McDonald’s outlet was very different as it served fast food whereas McCurry catered only typically Indian food.
“There is evidence to show that the type of customers who patronise the defendant’s outlet is very different from those who patronise the plaintiff’s several outlets,” he said, adding that the former was patronised by adults and senior citizens while the latter was mainly by children.
On Sept 7, 2006, the High Court held that the McDonald’s fast food chain, a household name among children, had the exclusive right to the prefix “Mc” and ordered McCurry Restaurant (KL) Sdn Bhd to pay damages to McDonald’s Corporation, the proprietor of the McDonald’s chain of restaurants.
In her ruling, Justice Siti Mariah Ahmad said by using the words “McCurry” and employing a signage which featured colours that were distinctive of McDonald’s, McCurry Restaurant was indulging in acts that could give rise to confusion and deception.
McDonald’s, in its statement of claim, 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.
McCurry Restaurant, in its defence, contended that McDonald’s could not claim monopoly or exclusive rights to the use of the prefix “Mc,” as that prefix was extensively used around the world as surnames, particularly by people of Scottish origin.
McCurry Restaurant said the menu was essentially Malaysian and Indian cuisine consisting of teh tarik, roti canai, nasi lemak, nasi briyani, fish head curry, chicken tandorri, naan bread, tosai, chappati and various chicken and mutton curry dishes, which were totally different from those available in McDonald’s restaurants which comprise food typically found in western food restaurants such as burgers and french fries.
McDonald’s was represented by counsel S.F. Wong while counsel Sri Dev Nair appeared for McCurry. -- Bernama
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