The Age reports that chef Heston Blumenthal (owner of a popular restaurant in England called The Fat Duck) has won a battle with the owners of a Darling Harbour restaurant also called Fat Duck.
SL6 LIMITED, THE FAT DUCK LIMITED and TFDG LIMITED (Blumenthal et al) took action under the Australian Consumer Law against FAT DUCK PTY LTD in the Federal Court over use of the name Fat Duck.
On 30 November 2011, the court made an order that FAT DUCK PTY LTD “be restrained from, either directly or by their directors, officers, employees, agents or otherwise, representing that they or their products or services have the sponsorship or approval of, or are otherwise affiliated with, the applicants, by using the words or marks “Fat Duck”, “Fat Duck Rotissoire Kitchen” and/or “Fat Duck Catering” or any other words or marks which are substantially identical or deceptively similar to them.”
However, FAT DUCK PTY LTD continued to use “Fat Duck” in the form of “Vive le Fat Duck” or “Le Fat Duck Bakery” and in February, Blumenthal et al filed an interlocutory application to enforce the orders made by the Court in the original proceeding.
On 7 February, the court made a further order that FAT DUCK PTY LTD “be restrained from, either directly or by their directors, officers, employees, agents or otherwise, representing that they or their products or services have the sponsorship or approval of, or are otherwise affiliated with, the applicants, by using the words or marks “Vive le Fat Duck” or “Le Fat Duck Bakery”.
You may wonder why Blumenthal et al relied on Australian Consumer Law alone and not registered trademarks. The reason for this is that, as at November 2011, Blumenthal et al had no registered Australian Trademarks.
Blumenthal et al have attempted to rectify the situation by filing a trade mark application for The Fat Duck in classes 9, 16, 41 and 43 (which has recently been accepted).
Unfortunately for Blumenthal et al, there is an existing trademark application for The Fat Duck (applicant Nicfran Pty Ltd) which is preventing their registration of The Fat Duck in respect of Wine in class 33. Blumenthal et al have opposed registration of this earlier trademark.