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McDowell's vs McDonald's?

In preparation for Coming 2 America hitting the little screen, we recently re-watched the original Coming To America. Just like last year’s Tiger King episode involving Joe Exotic’s mistaken attempt to confuse consumers by registering “BIG CAT RESCUE ENTERTAINMENT GROUP, INC” (vs Carol Baskin's Big Cat Rescue), parts of this movie stood out to me because of the trademark issues that surely were inserted by the script writers as a little inside joke which I’ll let you in on.

If you’ll recall, in the original Coming To America, Eddie Murphy’s character finds a low-level job at “MacDowell’s.” In one scene, Mr. MacDowell thinks he sees photographers from McDonald’s photographing the exterior of his restaurant. “It’s just a little misunderstanding we have,” he explains to Eddie Murphy’s character. While the McDonald’s crew has expressed displeasure with the similarities in McDowell’s and McDonad’s, there is no actual infringement, according to Mr. McDowell, because:

  • They’re McDonalds – I’m McDowell’s.

  • They have the Golden Arches – I have the Golden Arcs.

  • They got the Big Mac – I have the big Mic.

  • My buns don’t have sesame seeds on them!

Unfortunately, Mr. McDowell is sadly misinformed about trademark law. In fact, a famous case, Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) held that when one restaurant blatantly copies another’s decor/look and feel (“trade dress”), that constitutes infringement under the Trademark Act. The Supreme Court in that case even noted that a restaurant can either have a distinctive trade dress, or it may have acquired secondary meaning in its trade dress through long and continuous use. In both versions of Coming To/2 America, McDowell’s not only copies the same color scheme as McDonald’s, it also uses similar names for the fast food items, and has an extremely phonetically and visually similar name.

Coming 2 America (the sequel) opens with the celebration of a Zamunda McDowell’s. Once again, Mr. McDowell insists, his restaurant and the menu items were in no way influenced by McDonald’s. “They have Egg McMuffins, I have Egg McStuffins,” he exclaims. In real life, McDonald’s would never have let McDowell’s use such a similar name and trade dress for more than 30 years. In between Coming To America and Coming 2 America, they would have sent a cease and desist letter, and if McDowell’s ignored it, probably would have sued McDowell’s for trademark infringement in Federal court. If McDonald’s had not taken action over the last 30 years, then McDowell’s might have a decent “laches” defense. Laches comes up when a party waits too long to enforce their rights.

To avoid a Mr. McDowell-type trademark conundrum, please contact us to discuss your intellectual property. And, join me in a webinar on March 24th discussing trademarking and branding - what's the difference, anyway!?

Photo by Joiarib Morales on Unsplash.

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