McDonald’s Burgers & Burger King Fries

As I sit here eating my Burger King French Fries and McDonald’s Double Cheeseburger, (ketchup only, of course), I can’t help but think of a recent conversation I had with my very innovative 11 year old son Joey. We had just left the doctor’s office and were a bit pressed for time, so we decided to stop at Burger King for lunch on the way to our next destination. I ordered the BK Whopper Jr. with Fries and a Soda and Joey chose the Chicken Fries with Fries and a Soda as well.

While enjoying my BK fries and not so much enjoying my Whopper Jr. I said to my son “McDonald’s Burgers are so much better than Burger King’s, but Burger King makes the best fries!” I recall as early back as my first year in college, driving through the McDonald’s drive through for my Quarter Pounder with cheese and you guessed it, ketchup only. And then I’d drive up the street to the Burger King and order my fries. I have always felt this way and I am sure there are many others that feel the same.  But I digress.

After my comment, Joey looked at me and nonchalant as could be he said, “Too bad you can’t have a company that sells both. Maybe we should start our own company!” My son is always “inventing” things, from fast cars of the future to children’s games. I’ve got hundreds of his “patent drawings.” My response to Joey, which I said with a sly chuckle was, “Well if we did start a company like that, then we’d have to steal the recipes.” And so the wheels in my mind started to turn.

I wonder if we could, in fact, start such a company. Would we be infringing on McDonald’s and Burger King intellectual property. Would we be subject to an immediate lawsuit that would shut down such a great business endeavor? I can only assume that the answer to these questions is “Yes.” Stealing recipes is not something that should be done because such an activity could easily be trade secret misappropriation. What if we purchased the burgers directly from McDonald’s and the frozen fries from Burger King? Would they be willing to sell their products to a legal and safe business establishment for resale?

Given that my husband just so happens to be a Patent Attorney (who, I might add, is rather well known within the Intellectual Property community), I decided to get his opinion. What he told me is that when someone purchases an item at retail cost, they have every right to resell that product using its given name and trademark. For example if I decided to sell my Hyundai Santa Fe, which I bought at retail, I am certainly within my legal rights to advertise and sell it as a “Hyundai Santa Fe.”

When one company purchases items at wholesale cost for resale, the resale company would almost certainly have to enter into a lengthy legal agreement with the original company (in this example McDonald’s and Burger King). Agreements such as this have all kinds of legal stipulations attached to it. For example, any advertising campaigns typically have to be approved by both corporate entities, which means the original company would have complete and final say on when and how their trademarks and product names could be used. Furthermore, the methods of which the products are stored, prepared and served would also be discussed at length in such an agreement.

I would love to open up my own business selling McDonald’s Burgers and Burger King Fries. But such an endeavor would probably be so costly to “do it my way.” But I have to give Joey credit. He’s quite innovative for an 11 year old boy.

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