Aug 12, 2016
It is good news – Judge Katzmann in the Federal Court of Australia has found in favour of Dick Smith Foods so we can keep our trade mark and keep selling OzEmite to make more money for Australian charities and assist Aussie farmers.
The judge not only decided that we had used the trade mark in the three year period, but on discretion she also found that our trade mark should stay. She has awarded the costs against Roger Ramsey. We spent over $550,000 that should have gone to charity but went to the legal system for this totally unnecessary case.
Attached is the judgment. Note paragraph 237 of the conclusion:
“The appeal should be allowed. I am satisfied that DSI, the then registered owner of the OZEMITE trade mark, used the mark in Australia during the statutory period in relation to the goods to which the non-use application relates. Even if I were not so satisfied, I would exercise my discretion to order that the mark remain on the Register.”
Nothing could be clearer than that.
Other important parts of the judgment include the following.
“Mr Ramsey did not submit that his own conduct was irrelevant. Nor did he deny that he has misappropriated the reputation of the Ozemite name.”
“In cross-examination he (Roger Ramsey) admitted to taking advantage of the publicity for OZEMITE to “leverage off that publicity.” He said it was “unavoidable”, but it was only unavoidable if he was proposing to use a substantially identical or deceptively similar name.”
Later in paragraph 217 the judge said:
“Furthermore, I have no confidence in Mr Ramsey’s evidence”
Paragraph 219 states:
“Finally, he conceded that he was prepared to say anything in opposition to the Dick Smith parties even if he did not believe it. He also admitted to giving false evidence in the appeal (at ts 261). The conclusion is irresistible that he would say anything if he thought it would assist his case. Unless his evidence is against his interest, or corroborated by independent evidence, it would be unsafe to rely on it.”
The judge also made it clear that she believed that Mr Ramsey did not come up with his Aussie Mite name until after he had heard of our OzEmite name and seen the incredible publicity we generated when we first launched the product.
Most importantly, the judge said in paragraph 236:
“The best way of dispelling the notion that AUSSIE MITE is a Dick Smith product is to enable the two products to compete for attention on the supermarket shelves where consumers can see clearly which is the Dick Smith product and which is the Ramsey one.”
We at Dick Smith Foods couldn’t agree more. We always said that the market should decide, and during the court case we had a standing offer to Roger Ramsey and his daughter Elise that we would give them substantial assistance in their marketing if they agreed that the two products should stay on the shelves side by side. The Ramsey’s would not agree with this reasonable offer.