Dick Smith no-show in OzEmite battle

MICHAELA WHITBOURN
Last updated 13:45 03/12/2013

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Dick Smith's Australian-owned Vegemite alternative, OzEmite, is set to disappear from supermarket shelves as the result of a legal battle he says will be a "catastrophe" for his charity.

The makers of another Australian-produced spread, Aussie Mite, are seeking to have Dick Smith Foods' OzEmite brand struck off the trademarks register at a hearing in Canberra today.

This would pave the way for Aussie Mite's owners, South Australian businessman Roger Ramsey and his daughter, Elise, to sue Smith's charity for trademark infringement if it continues to use the brand.

Smith is refusing to fight the application because he does not want to spend "one cent" on lawyers.

"We're not even going to appear," he said.

"This is ridiculous. We're doing this for charity."

Dick Smith Foods has sold about 500,000 jars of OzEmite since it hit supermarket shelves in June last year.

All of the profits, totalling more than A$150,000 ($167,000) since its launch, are donated to charity.

Smith registered the OzEmite trademark in October 1999, 18 months before the Ramseys registered Aussie Mite in May 2001.

But Aussie Mite hit the market in May 2000, more than a decade before Dick Smith's product.

Both parties insist they coined their brand name first.

Premium vs 'ocker' 

 

Ramsey said the confusion between its "premium" spread and Dick Smith's "ocker" product was destroying her family's business.

"Basically he's come along and launched a product called OzEmite made by our original manufacturers. It's really frustrating," she said.

Chris Jordan, a partner at law firm Davies Collison Cave, said Smith was "doing himself no favours at all by not turning up" to the hearing on Tuesday or lodging detailed written submissions.

Aussie Mite wants Smith's trademark removed from the register for "non-use" between 2008 and 2011.

Jordan said the Trade Marks Office could take into account a range of "discretionary factors" when deciding whether to remove a trademark for non-use, such as whether the trademark is being used now.

The fact that Smith had a family of other products using the "OzE" prefix, such as OzEnuts and OzEchoc, might also be relevant.

"If he hasn't brought these other factors to the attention of the Trade Marks Office ... then they won't know about them," Jordan said.

He said Smith could appeal any decision to the Federal Court but it would cost "ten times more at least" in legal costs.

Smith said losing the trademark would be "a catastrophe for us and for Dick Smith Foods" but the product could be relaunched under a new name.

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He registered the name Dinky Di-Nemite in October 2011 - Ramsey's original name for his premium spread.

- Sydney Morning Herald

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