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"Not-so-happy little Vegemites" appeared to be the outcome of a long-running trademark dispute between Dick Smith Investments Pty Ltd and Mr Roger Ramsey over the branding rights of one the most iconic Australian products. The Court of Appeal supported the well-known Australian businessman Dick Smith in his fight to allow his product to remain on the shelf.
Ramsey, who owns the trademark to 'AussieMite' yeast spread, relied on the provisions in the Trade Marks Act (Cth) which states that the owner of a trademark must use it within 5 years of registration or a new party can apply to have it removed from the register. Ramsey claimed that Dick Smith Industries (DSI) did not use its trademark for OzEmite within 5 years from the date of registration. Ramsay was keen to knock out the competing brand.
Ramsey won the case at the first instance before IP Australia. In appealing the decision, DSI endeavoured to prove that during the 5-year period DSI did use the OzEmite trademark pursuant of s92(4)(b) even if the product still had not been developed and manufactured for some of that time. If DSI were unable to sufficiently prove this use, the court would then give consideration to whether any obstacles occurred that would have affected the possible use of the trademark. In determining the extent of the use of trademark, the court was forced to consider whether the ‘pre-launch publicity’ events could be considered as ‘use’ of the trademark.
The court found it was satisfied with activities undertaken by DSI and considered that they were sufficient use of the trademark and thus the trademark 'OzEmite' should remain on the trade mark register much to the chagrin of Mr Ramsey and 'AussieMite'.
It is worth noting that a judge is able to apply his or her discretion if not satisfied by the use of the trademark in order to ensure that the mark remain on the register. Mr Ramsey was ordered to pay the costs of both the appeal and the application to IP Australia.