Trade Mark Mite Fight Set to Continue as Dick Smith Appeals to the Federal Court
Friday 21 March 2014 @ 11.19 a.m. | IP & Media
Australian businessman and entrepreneur Dick Smith has filed an appeal in the Federal Court over the decision that lost him his 'OzEmite' trade mark. As previously reported on TimeBase (see Trademarks Ruling in OzEmite Matter or Aussie Mite Can but Dick Can't?), IP Australia ruled in February this year that Dick’s trade mark should be removed in favour of rival brand, 'Aussie Mite'. Although Dick Smith’s trade mark had been filed earlier, in 1999, his product was not launched until 2012 - well after Roger Ramsay had filed his trade mark application in 2001 for his product 'Aussie Mite', which was already on shelves. This meant under Australian law, Dick Smith’s trade mark could be removed from the register for non-use.
Dick Smith had previously told Australian media and marketing website Mumbrella that he refused to spend money defending the trade mark in court, saying:
"I’m not going to spend one cent on lawyers. If they settle on striking it out, we’ll just come up with a new name".
He had suggested 'Dickymite' as a possible replacement name.
He has since had a change of heart, which he told Mumbrella was due to the response he received from the public:
"So many people wrote to me and said Dick, under no circumstances should you give in to this dishonesty when Ramsey’s clearly stolen your name."
He also claimed that Ramsey initiated the trade mark battle for publicity purposes:
"The sales he has are just minute, last time I looked they were less than 1 per cent of the yeast spread range. We’re selling about 2.4 per cent. The only reason he could be spending this money is to get publicity. I would imagine his product would be about to get dropped by Coles and Woolworths because his sales are so small."
In response, Ramsey described Smith’s claims as "wild allegations", saying he was disappointed that Smith has not "accepted the umpire’s decision":
"We’ve come this far, we’re at the point of no return. The rules are in Australia it’s first to shelf, not the first to register a trademark for who has the rights to that name."
Smith also appears to have a second back up plan, as a new trade mark application for "Dick Smith’s OzEmite", a composite mark, was lodged on March 6. Smith’s lawyers expect the Federal Court appeal to be heard later this year.
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