Fashion at McDonald’s: When a 'Happy Meal’ becomes an it-bag

In an interview with GQ magazine, Raf Simons said: "I'm inspired by people who bring something that I think has not been seen, that is original. It's not always about being new-new because who is new-new?". Indeed, it is difficult in fashion to escape the influence of the pre-existing. The fashion industry is based on repetition and derivation. It is therefore often a question of creating ‘new’ things while being inspired by pre-existing ones. This phenomenon ranges from slight iteration to homage or even slavish copying. The controversies of the most recent Paris Haute Couture Week, which took place last month, are proof of this [see here, here or here].

This Kat is fond of McDonald’s

Background

While browsing through specialised websites and popular media, some Kats noticed that Parisian couture house Saint Laurent is selling a handbag model, the Take-Away Box, which is seemingly inspired by the packaging of McDonalds' children's menu, the Happy Meal. This Kat then finds it amusing to try to determine on what basis the fast food company could sue Saint Laurent, if such a dispute where ever to arise. One might remember that in a world full of collaborations, McDonald’s is also a player [with a streetwear brand, with a rapper].

First of all, a brief description of the Saint Laurent bag and the Happy Meal is required.

The Take-Away Box bag

The Take-Away Box leather bag is shaped like a rectangular box, with the sides and front extended to form a closing system with a handle. The bag is available in “dusty vintage brown gold” and black. A monochrome print consisting of the repetition of the Cassandre logo enclosed in a stitched diamond covers the entire bag. On the front of the bag, the logo of Saint Laurent appears in the centre, in gold or silver lettering, filling almost the entire height of the bag.

The McDonald's Happy Meal has a square box shape. It is red on two sides, with the others covered by the theme of the moment. Note that the colour scheme and decoration of the box vary to a greater or lesser extent depending on the theme of the gift of the moment. The front side may feature a stylised representation of a smile or the Happy Meal logo. The handle of the cardboard bag has the appearance of the fast food chain's golden arch.

An example of a Happy Meal box

Thoughts

Patent law is ruled out from the analysis. The chances of McDonald's coming up with any innovation for the Happy Meal box are close to nil. No patent seems to concern this box.

In terms of design law, it does not appear that McDonald's has chosen to protect the aesthetic appearance of the Happy Meal. No registration is apparent on the database of the EUIPO. Nor does the unregistered EU design law appear to be a valid legal basis. Indeed, the current Happy Meal packaging has been known to the public for much longer than 3 years. Perhaps, McDonald’s should not have disregarded design law. After all, one of the objectives of design law is to protect the appearance of a product [IPKat on Cofemel here].

If we look at trade mark law, the registers show that four trade marks could be of interest [here, here, here and here]. The first two figurative marks seem to stand out. Both designates class 42 (i.e. Services rendered or associated with operating and franchising restaurants and other establishments or facilities engaged in providing food and drink prepared for consumption and for drive-through facilities), and not 18. They both show the face of a character, including eyes, a nose and a mouth. Therefore, if McDonald's were to act, it would be based on these trade marks. However, the chances of success would be low. The signs are potentially dissimilar, as the fictional face and the two arches are not reproduced on the bag. The registered class is not class 18, used for handbags. Regarding the existence of a likelihood of confusion, the verbal element that tends to strike the average consumer, namely the M, is not present on the Saint Laurent bag. The infringement of one of the functions of the mark could be the origin one in the worst case. Moreover, by such an action, Mcdonald's could run the risk of cancellation of these two marks for non-use. After all, McDonald’s has seemingly not used the registered versions of its Happy Meal, at least not in Europe, for a very long time.

"Fashion is my passion" says the Kat

This would leave copyright. Naturally, the originality of the Happy Meal would first have to be established. If such protection were to be granted to the Happy Meal, it does not mean that the Take-Away Box would necessarily be infringing. The reproduction of the elements that illustrates originality of the Happy Meal should be demonstrated. Quickly, the placement of the logo in a very central position on the front of the product constitutes the major point of similarity. The geometric shape could also be another element. It should be remembered that copyright infringement is assessed on the basis of similarities, not differences. It does not matter that the arch-shaped handle is not reproduced at all (e.g. one could imagine a twisted Cassandre-shaped handle). However, the playful aspect would be a common thread. Saint Laurent could still argue that the Happy Meal box is banal, with very little difference from what already exists in the fast food and takeaway sector [e.g. Burger King]. It could also argue that it is no more and no less than the standard container of a transportable box of takeaway food. Regarding the exceptions and limitations to copyright, the parody exception seems to stand out, even if the humorous aspect seems difficult to find application here [IPKat Deckmyn posts here]. On this point, the irony resulting from the creation of a luxury handbag based on a package used to junk food for kids seems to be an exploitable avenue. In the end, Saint Laurent might even try to argue that its handbag is eligible to copyright protection.


In any case, this is not the first time that the fashion industry has been inspired by the world of fast food and agribusiness. For example, in 2014 Moschino unveiled a parody collection based entirely on the world of McDonald's Corporation (although there was a license agreement between the parties). The House of Lanvin also marketed a bag inspired by takeaway boxes for pastries. Karl Lagerfeld chose to create a handbag for Chanel in the shape of a supermarket shopping basket.