Dick Smith held Australian Trade Mark Registration No. 811789 for OZEMITE.
Roger John Ramsey and another hold Australian Trade Mark Registration No. 874833 for AUSSIE MITE.
Both trade marks cover ‘spreads’ in Class 30. Unsurprisingly, the two parties have been crossing-swords for some time (each opposed the other’s registration). Ramsey filed a non-use removal action against Dick Smith’s registration on the grounds that it has not been used in the three years preceding the non-use application.
Dick Smith sought to oppose the removal of its registration, however, it was unable to produce any evidence of actual use during the relevant period. It was able to produce some evidence of advertisements featuring the trade mark, but as the goods were not actual available for purchase these were not found to constitute ‘use’ of the trade mark.
Dick Smith also pressed claims that it had excusable non-use due to Kraft (a Dick Smith competitor) making it nearly impossible for Dick Smith to obtain brewers’ yeast (the essential ingredient in the OZEMITE spread).
This defence against the non-use action fell over largely on the basis that Ramsey had been able to obtain brewers’ yeast during the same period that Dick Smith claimed it was not able to. Dick Smith was unable to demonstrate ‘use’ of its trade mark and the Hearing Officer did not accept its reasons for excusable non-use. The Dick Smith registration will be removed from the Register.