The Federal Court of Australia has decided that Dick Smith can continue to sell his OzEmite yeast spread, despite it having a similar name to another brand AussieMite.
In April 2014, the Australian Trade Marks Office decided that Smith’s trade mark for Ozemite should be struck off for non-use. Mr Smith had registered the Ozemite trade mark in 1999, but it took until 2012 before he launched a yeast spread product under the name. The Trade Marks Office decided that this delay between registration of the mark and launch of the product was too great.
After a four-day trial in late 2015, Justice Katzmann has now delivered judgment, deciding that Ozemite can remain on the trademarks register. In practical terms, this means that both products will continue to coexist and the owners of Aussiemite must pay Smith’s legal costs.
“It just seemed sensible to me that our OzEmite name, we came up with it first, and we should be allowed to keep it,” Smith said outside the court.
“If we lost this we would have had to close down the business.”
Elise Ramsey, Managing Director of AussieMite argued that there is no phonetic difference between the two names.
“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. I do think it’s wrong that Mr Smith launched his product in 2012 in full knowledge that ours had already been in the market for years,” Ramsey said.