Anakin Pty Ltd v Chatswood BBQ King Pty Ltd

Anakin Pty Ltd commenced proceedings against Chatswood BBQ King Pty Ltd, seeking relief for alleged infringement of a registered trade mark. The applicant, Anakin, claims that the respondent’s use of the name "BBQ King" and associated signage infringes on their registered trade mark. The respondent, Chatswood BBQ King Pty Ltd, has defended the claims and filed a cross-claim seeking the cancellation of the trade mark registration or its qualification to exclude any exclusive rights over the term "BBQ King".

The court was tasked with determining whether the respondent’s use of the name "BBQ King" constituted an infringement of Anakin’s registered trade mark. Additionally, the court needed to address the respondent’s cross-claim, which challenged the validity and scope of Anakin's trade mark registration. This included the respondent's argument that the trade mark should be cancelled or qualified to exclude any exclusive rights over the term "BBQ King".

The court found that there was sufficient evidence to warrant an order for the respondent to change its name and the name of its restaurant, to remove and destroy its infringing signage, and to deliver up any materials displaying the words "BBQ King". The court noted that the evidence demonstrated that the BBQ King Restaurant in Haymarket was opened in 1982 by a company controlled by Mr Yuen Cheung. The court also ruled that the receipt of the Sale Agreement, although potentially affecting a dutiable transaction, was admissible as it evidenced the ownership of the BBQ King restaurant. The court concluded that the respondent's cross-claims were not pursued.

The court ordered that the proceeding be stood over to a later date to allow the parties to reach agreement on the orders to be made. If the parties could not agree, they were required to provide their proposed orders and briefs by 3 October 2008. The court emphasised the need for the parties to seek agreement on the terms of the orders, including any orders for costs.