Dick Smith’s OzEmite brand can remain on the Trade Marks Register, the Federal Court of Australia has ruled.
AussieMite is an Australian owned and made yeast spread, designed to compete with products such as Vegemite. The product is gluten free and endorsed by Coeliac Australia.
In April 2014, the Australian Trade Marks Office decided that Dick Smith’s trade mark for OzEmite should be struck off for non-use. Smith had registered the OzEmite trade mark in 1999, but it took until 2012 before he launched a yeast spread product under the OzEmite name. The Trade Marks Office decided that this delay between registration of the mark and launch of the product was significant.
Despite not appearing at the Trade Marks Office to defend his position, Smith refused to accept the umpire’s decision, and appealed to the Federal Court.
After a four-day trial in late 2015, Justice Katzmann has now delivered judgment, deciding that OzEmite can remain on the trade marks register. In practical terms, this means that OzEmite and AussieMite will continue to coexist and the Ramsey family must pay Dick Smith’s legal costs.
For Roger Ramsey, the man who has battled for AussieMite since its launch in the early 2000s, and his daughter, Elise Ramsey, who has helped run the company in recent years, the decision is disappointing.
“The names sound exactly the same. I’m a bit tired of explaining to potential suppliers that the two products are different. We want to avoid confusion in the marketplace,” said AussieMite MD Elise Ramsey. “I do think it’s wrong that Smith launched his product in 2012 in full knowledge that ours had already been in the market for years.”
Ramsey added, “Mr Smith’s actions shine a spotlight on his failure to walk the talk when it comes to championing the little guy. He invested heavily in actions designed to crush our small Australian business and funded lawyers to do so.”
Ramsey added that the family business and AussieMite is her life’s work, and that it’s otherwise business as usual.
