10/12/2015

We have just spent 4 days in the Supreme Court of Australia from Tuesday the 1st until Friday the 4th of December. Barristers on either side argued their cases for their clients.

Unfortunately, we now have to wait for up to a couple of months for a decision to be made. We will ensure that we keep you posted as news come to hand.

We are hoping that we can continue to sell OzEmite, as recently sales have increased and very soon we will have reached 1 million jars, here’s hoping!

Thanks for all the letters, emails and calls of support!

Regards,

Dick

Letter sent to Roger Ramsey on the 23rd June 2015

Like many Australians, I was amazed to find that Vegemite was American owned – at the time by Kraft and the Phillip Morris Cigarette Company.

I decided it was time we had our own Aussie yeast spread so I came up with the name, OzEmite and announced the proposal on national television. Two weeks later I learned that Kraft had heard of my plans and registered the name “OzEmite” in an attempt to stop me from going ahead.

In a segment headed, “Kraft’s Dirty Tricks” on A Current Affair, journalist Mike Munro asked a Kraft executive, “why go out and deceptively register OzEmite?”. The executive responded, “we register a number of trademarks”. When asked by Mike Munro whether they had registered “Yankymite” or “Americanmite”, he received no answer.

This was just the beginning of our problems. Vegemite, invented by Australian Cyril Callister in the 1920s, was made from spent brewers’ yeast. When I contacted the major breweries to buy brewers’ yeast to make OzEmite, I was quickly told they all had sales contracts with Kraft.

Meanwhile, the German-owned Aldi introduced a Vegemite copy they called “Brekkymite”, which was made in Brazil. It was obvious to me there was no way we could compete with such a low-wage country.

Thanks to some brilliant Australian food technologists, we have found a way of producing OzEmite without using spent brewers’ yeast that in other countries is normally used as animal feed. We have used purpose-grown yeast based on corn so it’s gluten-free. Yes, the costs are higher, but quality and taste always cost a little more. Also, our OzEmite is not as thick as Vegemite as it is specially formulated to be more spreadable and less is required to experience the taste.

Most importantly, OzEmite is, I believe, closer to the original taste of Vegemite that I remember as a boy in the 1950s. It’s not widely known that Kraft changed the taste due to a shortage of one type of yeast but did not tell Australians of this.

Recently we conducted a taste test. Results showed that 70% of Aussies thought it was “different” but liked our OzEmite as much or more than Vegemite. Our OzEmite does not have an identical taste to the modern Vegemite. If you want that taste, stick to the American Vegemite or buy Aldi’s Brazilian Brekkymite. We have come up with a taste which, I believe, is more similar to the original Vegemite and appealing to the Australian palate.

If Dick Smith Foods gets just 20% of the market with OzEmite we will be delighted because OzEmite is Australian owned and the profits stay here. Recently the Wall Street Journal stated this about Kraft: “Vegemite’s maker is struggling to recruit young Australians to eat the thick, brown, salty spread their parents have always adored”. I don’t believe it’s the taste that’s the main problem. I believe it’s the fact that Aussies now know that Vegemite is not Aussie-owned and that takes away enthusiasm for the product.

 It’s amazing how so much of what Dick said at the time has turned out to be true.

 “Note to Phil, Can you see if you can register a name, e-mail address, OzEmite.  It will be for Dick Smith Foods or Dick Smith Investments.  Maybe a business name as OzEmite or a trading name. It is for my Australian version of Vegemite.  And once I announce it everyone will try to register it to stop me.”

Should we give in and change our OzEmite name to “DickiMite”?

Many will probably remember the story where Roger Ramsey originally came up with a product called “Dinky-Di-Nemite” (a great name, we think) but then decided to change his product’s name to “Aussiemite” – one very similar to our announced brand.  When he told AusBuy of this they told him this wasn’t on because everyone knew that the result could be misleading. As we had announced our OzEmite brand more than two years before – below is the Affidavit:

More importantly, these are the dates that we applied for and registered our OzEmite and the dates Roger Ramsey applied for and registered his Aussiemite.

OzEmite
Applied for NSW Business name: 23/6/99
Trade Mark application date: 28/10/99
Date of Acceptance: 7/12/01
Entered on Register: 23/10/03

Aussiemite
Trade Mark application date: 7/5/01
Date of Acceptance: 23/9/03
Entered on Register: 8/11/06
It is quite clear from this that we were years ahead of Roger Ramsey.

It took many years for us, working with Aussie companies, to perfect the OzEmite taste.  Because of this, Roger Ramsey has claimed that there is a period of three years where we did not sell the product so our trade mark should be struck off.  We didn’t want to waste money on lawyers (which would otherwise go to charity in our case) so we did not fight the case and Roger now claims he has won.

Do our supporters believe we should go to Appeal, which could be very expensive and would result in less money to charity?  Or do you believe we should give in and change our OzEmite name to “DickiMite”???

You can provide us with your comments on this issue on our Facebook page.

I look forward to everyone’s suggestions on this.

Update 14th September 2015
Last week we went to Court for a Directions Hearing, below is a link to the report on this that appeared in the Australian Financial Review.  The costs are truly horrendous, we have spent over $250,000.00 and we are told it could cost up to $350,000.00 to complete the case when it goes to Court.  The Court dates have now been set for 1st December to 4th December 2015 at The Federal Court of Australia in Sydney.  At the Directions hearing Roger Ramsey’s daughter, Elise arrived to run the case with Roger on the phone from Adelaide.  Presumably this is to keep costs down however, if they hadn’t attempted to strike off our OzEmite name in the first place such costs would have never occurred and we would be two Aussie companies competing with each other and against Kraft – what can be better than having fair competition?

The Australian Financial Review 12-13th September 2015, article by Marianna Papadakis
A long-running trademark dispute between businessman Dick Smith and entrepreneur Roger Ramsay over their respective black yeast breakfast spreads has landed in court after the Ramsay family rejected Mr Smith’s offer to help build up their business.
The dispute has been running for many years with the Ramsay’s accusing Mr Smith of trying to squash their small Adelaide-based family-run Australian brand, AussieMite while Mr Smith alleges the Ramsay’s stole the idea for naming the product from his own spread, OzEmite.
Mr Smith’s barrister Patrick Flynn told Federal Court proceedings on Friday Mr Smith had no desire for either of the parties to spend time and costs litigating the matter and it was with “sorrow rather than anger” the dispute had come to court.
Mr Smith is challenging an order by Intellectual Property Australia in February 2014, that he remove the OzEmite name from the trademark register.
The order had been successfully sought by the Ramsays. Mr Smith is also now seeking to have Mr Ramsay’s AussieMite trademark removed.
According to court documents Mr Ramsay was offered $80,000 by Mr Smith to help build the AussieMite brand in exchange for an agreement for “peaceful coexistence” of both products.
After lengthy mediation attempts, the offer was refused, Mr Flynn said.
Mr Flynn said if Mr Smith’s appeal failed, he could be susceptible to an infringement and a halt in sales that could cause confusion in the market.

Attached below is a media release we sent out at the time.  We have offered to pay Roger Ramsey $80,000.00 to help with his marketing of Aussiemite and we have offered to help him get back on the shelves in all Coles and Woolworths as a fellow Aussie company.  As can be seen from the Australian Financial Review article, he and his daughter just don’t want to have any product with a similar name to their Aussiemite, even though it is clear from the registration dates that he came years after ours and basically copied us.

We point out during the three year period that we allegedly did not use the trademark, we were working flat out on getting the taste right.  Yes, Roger Ramsey bought out a product very quickly but it was then dropped by the supermarkets because the taste was not good enough.  We did spend a very long time in getting the taste right and that’s why it is selling in substantial numbers in the supermarkets around Australia.  We have nearly sold 1 million jars of OzEmite and this has allowed over $500,000.00 to go to charity.
At the present time we are making a decision on whether we will go ahead with legal representation or whether I will go and basically let the Judge decide what to do.  If the costs are too great we will definitely close Dick Smith Foods down and spend time on something else worthwhile for charity.”

Because of Roger Ramsey’s action to try and have our OzEmite struck off, we have now spent more than $140,000 on legal costs.
This is unbelievable – money which should go to charity is going to legal representation.
Roger Ramsey has now agreed to mediation which will take place in Sydney in November. We hope something can be resolved before even more money is misdirected.

Thanks for your support and comments. Hear the latest on our OzEmite battle direct from Dick, who says it is “Absolutely ridiculous!”

We will be putting the Court Case date on our website as soon as we know when that is, so keep an eye out for further updates.

We have decided to appeal the decision of the Registrar of Trade Marks to remove the OzEmite registration.  Below is the press release announcing the decision:

An appeal against an administrative decision of the Registrar of Trade Marks to remove the Trade Mark registration of Dick Smith’s OzEmite has today been filed in the Federal Court of Australia. The application for removal had been made by Roger Ramsey as the proprietor of the AussieMite Trade Mark.

The Appeal will be a rehearing of the removal application in which the Federal Court will consider extensive evidence in support of the continuing use of OzEmite.

The OzEmite Trade Mark will remain registered and the popular OzEmite product will remain on supermarket shelves until the Appeal has been determined.
Dick Smith said today:
“Since October 1999 I have been devoting considerable cost and effort to develop the OzEmite product. Approximately one year after I announced the name, “OzEmite”, Roger Ramsey changed the name of his product from Dinky Di-Nemite to AussieMite, in what I believe was an attempt to misappropriate the reputation in my product and confuse consumers. The Federal Court will be asked to prevent this from happening”.

Mark O’Brien of Johnson, Winter & Slattery, Lawyer for Dick Smith, said he expected the case to be heard later this year.