The battle of OzEmite and AussieMite continues, with the news that Dick Smith has now appealed the February decision by the Registrar of Trade Marks.
In an appeal lodged with the Federal Court, the ongoing trade marks battle will be reheard later this year.
Dick Smith registered the name OzEmite in 1999 with Intellectual Property Australia, though his product – an Australian-made alternative to Kraft Vegemite – did not hit shelves until 2012. The trade mark was approved in 2003.
Roger Ramsey, the owner of an Adelaide small business, registered the name AussieMite in 2001, however his product had already hit shelves in May 2000. His trade mark was approved in 2006.
In 2011 Ramsey applied to IP Australia to have Smith’s trade mark removed, on the basis that it was too similar to his own, and Dick Smith foods had not (at that time) launched a product.
IP Australia agreed, and in February of this year ruled that OzEmite should be removed from sale.
Following the decision Ramsey took to YouTube to respond to the victory. “Having won that battle we’re now backed by IP Australia and the decision that our trademark AussieMite is the only true Australian product to be sold under that name,” Ramsay says.
“He’s [Dick Smith] a multimillionaire and we’re not. We’re just workers with a small family Australian business. We would hope he [Dick Smith] will respect the umpire’s decision, which has backed our brand,” Ramsey said.
Commenting on his appeal, Dick Smith said yesterday that since October 1999, his company has devoted considerable cost and effort to develop the OzEmite product.
Mark O’Brien of Johnson, Winter & Slattery, Lawyer for Dick Smith, said he expected the case to be heard later this year.
Justin Blows, Principal of Phoenix Intellectual Property, previously told Dynamic Business that while many people think about filing a trade mark or a patent to protect their assets, some forget that the trade mark or invention may already be in use or protected.
“It is important to check that a trade mark is not already in use or protected. If it is, then use by another may infringe the rights of the existing trade make owner, who may attempt to enforce their rights.
Blows commented that a registered trade mark is principally for distinguishing the goods or services provided by one person from another.
“The strongest registered trade marks are usually words that would have little or no connection with the product or made up words. For example “NIKE” for sports clothing and “APPLE” for computers. The more creative the trade mark, the more likely that it will be registrable and enforceable,” he said.
Top tip: It is important to get good advice on this early and before you establish your brand. Too often people try to protect their brand after it is established, only to find that it can’t be registered because it fails to distinguish.