OzEmite Spreads Thick

Written By

shehana wijesena module
Shehana Wijesena

Partner
Australia

As partner in our Intellectual Property Group in Sydney, I advise our clients on all aspects of IP strategies, protection, exploitation and enforcement.

The Federal Court of Australia recently overturned a decision of the Trade Marks Office to remove OZEMITE from the Trade Marks Register on the basis of non-use.

The Court decided that use of a trade mark can include promoting a product before it is available for purchase. The outcome is encouraging for traders with a registered trade mark that face a long lead-up time to launch.

'Concentrated yeast extract' may sound unpleasant - but it's truly delicious. In Australia, VEGEMITE is the most famous kind, but other brands include MARMITE, OZEMITE and AUSSIE MITE. 

In 1999, businessman Mr Dick Smith coined the term OZEMITE for an all-Australian concentrated yeast extract. After registering OZEMITE as a trade mark, Mr Smith took the brand to the media, spreading the word (excuse the pun) that 'a new yeast extract was in town'. However, supply setbacks meant OZEMITE was not available for purchase until 2012. 

In 2001, Mr Roger Ramsay began selling a concentrated yeast extract product called AUSSIE MITE. In 2011, Mr Ramsay successfully applied to have OZEMITE removed from the Register on the basis of "non-use". This decision was appealed to the Federal Court of Australia, which overturned the original decision.

Mr Ramsay argued that use means an "occasion of trade" in respect of "vendible articles", meaning there must be "at least a single act of sale". Given the first jar of OZEMITE was not sold until 2012, Mr Ramsey argued that OZEMITE should be removed.

The Court did not agree. Justice Katzmann stated that "vendible" does not mean sold, rather it means "capable of being sold" and that the very definition of a trade mark is "a sign used or intended to be used, to distinguish goods...". Justice Katzmann held that there was a genuine intention to use OZEMITE and the marketing expenditure and promotional efforts demonstrated this.

Supply setbacks should not mean that the trade mark had not been put to "genuine use". If "a single act of sale" were indeed the relevant test, it would leave traders who put goods on the market but fail to make a sale vulnerable to having their marks removed.

Latest insights

More Insights
featured image

UK Court of Appeal overturns refusal of interim injunction against generic companies

6 minutes Jun 26 2025

Read More
featured image

Patent litigation in Practice Series: How the Finnish principle of openness in governmental activities affects patent enforcement measures

5 minutes Jun 24 2025

Read More
featured image

Enforcement securities at the UPC - an exception not the rule

2 minutes Jun 24 2025

Read More