IP Case: McCurry vs McDonald

McDonald’s loses court battle against McCurry

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

Well Done & Thank You!

Salam and good day to all,
Well done to all, it seems that our event had been done successfully ! I did enjoyed it. All the posters are so beautifully and creatively designed. The booth also nicely decorated. The efforts given by each of you are priceless. Thank you to all for being so cooperative and patience. Although there were few hiccups during the event, yet the event still running smoothly. Again thank you and well done!
Remember to keep the poster for future reference.

Business Idea Competition S1'10

Salam guys,
Just to remind you all, the poster exhibition will be held on Tuesday, 2/3/10 next week. Venue: Gemilang Hall, Time: 2pm-5pm.
The format of the poster has been emailed. Please check your inbox.
All the best!

Why entrepreneurs (technopreneurs) is vital

Nice article to read. It may help your techno test ;-)

Why local entrepreneurs are vital

By Linda Lim

EVERY market economy needs entrepreneurs - the people who put together capital, skills, labour and land to create the products and services. In their 2007 book, Good Capitalism, Bad Capitalism And Economics of Growth and Prosperity, William Baumol, Robert Litan and Carl Schramm conclude that entrepreneurial capitalism is 'the only sustained path to economic prosperity'.

Developing economies like India and Vietnam boomed only after they instituted market reforms and unleashed the entrepreneurial energies of their populations. Silicon Valley and its counterparts worldwide show that even in mature economies, entrepreneurs are responsible for the vast majority of technological and market innovations and new wealth creation.

The innovative capacity of start-up entrepreneurial business is so superior to that of large corporate entities that in many industries, the latter must acquire the former to maintain growth and profitability. One reason the United States has long out-performed Europe and Japan in innovation and growth is its much more entrepreneur-friendly business system.

Historically, where states have substituted for indigenous private entrepreneurs state-owned enterprises (SOEs), these are eventually privatised. Foreign multinationals can also substitute for indigenous private entrepreneurs, but exclusive reliance on them deprives the host nation of wealth generated by its own businesses, and increases its vulnerability to external forces over which it has no control.

In Capitalism With Chinese Characteristics - rated one of the 10 best books of 2008 by The Economist - MIT management scholar Yasheng Huang shows that Shanghai's over-dependence on the state and on foreign MNCs has resulted in the under-performance of Shanghai's economy relative to that of other Chinese cities with more vibrant local entrepreneurial sectors. Investment, employment creation, company size, income, profit and patent generation are all much lower in Shanghai than in Zhejiang and Guangdong.

SOEs and MNCs 'crowd out' local private enterprise in product and factor markets, including by diverting potential entrepreneurial talent into the state or MNC bureaucracy. These offer the talented individual initially greater remuneration, status and security, but also prevent the development of more locally sustainable sources of growth.

For a small, resource-constrained yet highly developed economy like Singapore, attracting and retaining MNCs in sophisticated niches requires more costly 'investment incentives' (capital subsidies) and greater dependence on foreign talent: The narrower and more specialised the activity, the less likely are native Singaporeans to be found who possess the required skills.

In the post-crisis global economy, MNCs are consolidating manufacturing supply chains by producing in fewer places, mainly large markets. Meanwhile, declining political tolerance for 'tax havens', 'currency manipulation' and other industrial policies will make it more difficult to offer MNCs investment incentives. There is also a balance-of-payments risk, since profit outflows by MNCs in Singapore will at some point exceed the inflow of earnings on Singapore's foreign investments abroad.

Home-grown entrepreneurs are more likely to keep their capital at home, repatriate it from abroad, pay taxes, and maintain production and employment during economic downturns. Small local businesses also account for most employment creation. In the current crisis, from China to the United States, they are already innovating to survive in ways that larger state and multinational bureaucracies cannot anticipate or implement as quickly.

Home-grown entrepreneurs are more likely to create jobs for Singaporeans for each dollar invested. Their investments will be less capital- and foreign talent-dependent, and less volatile than those of global MNCs. They would be more likely to purchase inputs and services locally than globally, creating a market for other local entrepreneurs and developing the services sector, the main driver of growth and employment in mature economies. More local stock market listings will give Singaporeans more options for investment.

Entrepreneurship will also provide a channel of upward mobility for the majority of Singaporeans who do not have the higher education credentials and specialised skills demanded by MNCs. Role models of successful local entrepreneurs will help retain scarce local talent who might otherwise emigrate to advance within MNCs' global career ladders or start businesses elsewhere. Successful local entrepreneurs will also be more likely to provide philanthropy and leadership for civil society.

Size is no limitation. Local entrepreneurs in Denmark, Norway, Sweden, Switzerland, New Zealand and Hong Kong produced world-class companies, and local entrepreneurs flourish in many small developing countries.

With more home-grown entrepreneurs, Singaporeans would reap more of the benefits of what is produced in Singapore, through higher labour incomes, domestic consumption and domestic profits. Rising income inequality - aggravated by highly paid foreign talent at the top and abundant foreign labour depressing wages at the bottom - should also moderate.

MNCs, foreign capital and foreign talent have done a lot for Singapore. We need and should continue to welcome them. But openness to foreigners does not mean that we do not need home-grown entrepreneurs. We do.

The writer, a Singaporean, is professor of strategy at the Ross School of Business, University of Michigan.

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