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Tuesday, September 8, 2009

> McDonalds vs McCurry: Court wants questions rephrased

The Federal Court adjourned to tomorrow the hearing of an application by McDonald's Corporation for leave to appeal against the Court of Appeal's findings over the usage of the prefix "Mc" to enable McDonald's to rephrase the questions on the point of law.

Chief Judge of Malaya Tan Sri Arifin Zakaria, who led the panel with Federal Court judges Datuk Wira Mohd Ghazali Mohd Yusoff and Datuk James Foong, today ordered counsel S.F. Wong, representing McDonald's, to rephrase the questions based on the findings of the Court of Appeal.

Arifin said the court was not clear on the questions raised by Wong, and this was supported by counsel Sri Dev Nair, who appeared for McCurry Restaurant (KL) Sdn Bhd, a local Indian food outlet, that some of the questions posed in Wong's submission yesterday had not been raised in the Court of Appeal judgment.

McDonald's filed an application for leave to appeal after it lost its exclusivity to the usage of the prefix "Mc" when the Court of Appeal allowed McCurry Restaurant, whose outlet is located off Jalan Ipoh in Kuala Lumpur, to use "Mc" in its business signage on April 29.

The Court of Appeal ruled that it was wrong to assume that McDonald's had a monopoly in the use of the prefix "Mc" on a signage or in the conduct of business, and 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 Restaurant with the McDonald's mark.

In reversing the High Court's decision, it also held that the McCurry Restaurant signboard was different from McDonald's and 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.

On Sept 7, 2006, the Kuala Lumpur High Court held that McDonald's had the exclusive right to the prefix "Mc" and ordered McCurry Restaurant to pay damages to McDonald's Corporation, the proprietor of the McDonald's chain of restaurants.

McDonald's, in its statement of claim, said it created the prefix "Mc" as a trademark and that with the usage of the prefix, together with the word "Curry", McCurry Restaurant, 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 -- Bernama.