Katherine Rich takes side in Marmite war

Katherine Rich: Supports Sanitarium in bid to block imports by Marmite rival
Off the shelves, still

UPDATE:

Sanitarium has given Christchurch importer Rob Savage plenty of chances to fix his trademark-infringing ways, but he refuses to budge, NZ Food and Grocery Council ceo Katherine Rich says.

Mr Savage tried to bring a 2000-jar shipment of British Marmite to New Zealand in August, under the label Ma'amite.

Sanitarium did not accept his slight alteration of the name and stopped the importation on the grounds it infringes on its copyright.

It is threatening legal action to have the shipment destroyed, but Mr Savage says he will fight this in court.

Ms Rich says Sanitarium offered to allow Rob Savage to sell his shipment if he donated the profits to a local charity, but he refused.

She says he should explain why he would rather see the food destroyed rather than make the charitable donation.

"There are plenty of charities in Christchurch which would be delighted to receive what would have been a $5000 cheque, based on the $12,000 shipment.

"He would be no worse off, and the goods would not be destroyed.

"If the food gets sent to the tip, it'll be Mr Savage's fault and no one else's because he has just refused to engage."

Ms Rich says Sanitarium is being fair, and is doing what any other company would do in similar circumstances. 

"If Mr Savage renamed his store Pak'n'Save, The Warehouse or Harrods, it wouldn't be long before someone from one of their legal teams knocked on the door.

"There's no strength in a trade mark unless you protect and defend it.

"Mr Savage continues to fail to understand Business 101. There are some important business laws about what you can and can't do in New Zealand."


2.30pm:

Sanitarium is well within its rights to prevent a Christchurch man from importing a rival version of Marmite, an intellectual property lawyer says.

Baldwins intellectual property lawyer Rosemary Wallis says the first trademark for Marmite in New Zealand was made in 1910 by Sanitarium's predecessors.

Mr Savage has said he has sold the product previously with no problems, but Ms Wallis says there is no time limit on when Sanitarium can take action.

"If you owned a trademark for something and somebody else brought in a product into New Zealand that had your trademark on it, you'd be somewhat annoyed and you'd be perfectly entitled to try and stop them."

Unilever, which makes British Marmite, recognises Sanitarium's trademark by importing its product under the name Our Mate, Ms Wallis says.

Mr Savage's attempt to get around the trademark by calling it Ma'amite is not going to work, she says.

"That's still trademark infringement because trademark infringement is when a similar brand is used to get people to think it's a similar product.

"That's not going to save him, frankly. My suggestion to him would be to go and find an alternative product."

Meanwhile, Sanitarium has said its Christchuch factory, which is the only one that can product Marmite, is nearly functional again.

However, there is likely to be some delay between restarting production and getting the spread back on the shelves, meaning the prolonged Marmite drought is set to continue for some time yet. 

When Marmite was last on the shelves, it cost between $3 and $6, depending on the jar size. 

Now, a 250g jar is listed on Trade Me with a buy now of $50, while a 500g jar is going for $100. 

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22 Comments & Questions

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I fail to see the issue with Sanitarium enforcing their IP rights? I also don't understand why the guy is even importing it? It's available in almost every supermarket anyway under the brand Our Mate (it's also a lot nicer than the Sanitarium version)

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I'm appalled by Sanitarium's stance against this small businessman and will no longer buy Sanitarium products should they win.

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What a tosser.

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It seems a strange legal argument when Sanitarium's predecessors took their recipe from the British one in the first place "We imported the British one direct to New Zealand in 1910"
*quoted from their own website!!

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Which is precisely why I'm appalled by Sanitarium's stance!

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You guys need to take Kathrine's point about Business 101 and get real!

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Modern business 101 perhaps but, what about ethics.....

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Sanitarium may win the battle but lose the war. Most public comments are appalled at their stance, and they are losing customer loyalty as a result. As a company with tax exemption because of religious ownership, it also seems a fairly un-Christian attitude.

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I don't see why anyone would be appalled by a business protecting their products. This is just normal business practice, and if people don't understand that, then they shouldn't go into business.

Try selling "Georgie Pie" products and see how quick McDonalds come down on you...just because its not currently on the market doesn't mean they don't have the right to protect their ownership of it.

I thought the offer of Sanitarium to allow him to sell the products and donate proceeds to a charity were very fair (and very Christian).

What I'm most interested in is why Unilever aren't also taking action against Mr Savage - surely his importing of the UK product under a different label infringes on Unilever's agreement with the UK supplier?

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The point is one of reasonableness. Is it reasonable to deny somebody to sell a product that is freely available everywhere else in the world to a selected clientele that doesn't include your own customers?

It isn't like he has slapped a logo on a pot of generic yeast spread and is passing it off as NZ Marmite. He is selling what everyone else in the world knows as Marmite and has even gone to the lengths to import jars that were branded specifically for the Queen's Jubilee in order to ensure that the name was different to Sanitarium's product.

Even if it were being imported as Marmite, in a globalised world Sanitarium's trademark should not stop people from importing something from elsewhere with the same name as one in New Zealand provided that there is no confusion between the products. In this case the branding is completely different, the packaging different, and the sales outlets are such that there can be no confusion.

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In terms of reasonableness, Sanitarium offered Mr Savage an appropriate way out of the situation - he sells his product and donates the profits to charity. This was very reasonable on Sanitarium's part and Mr Savage should've taken the offer. He claws back his cost and moves on from a bad business decision.

It's still a licensing issue. The name or derivative of the name still infringes on their trademark.

Mr Savage is just making another bad business decision in not taking the charity option offered.

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Voula, if you don't believe in property rights, move to China.
A British Fan - they bought the name for NZ and Australia.

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Just as Sanitarium have the right to protect their trademark, Sanitarium's customers are perfectly within their rights to withdraw their custom if they don't like the company's actions. I personally think that they are grossly disproportionate given that there is zero chance of confusion and the businessman is merely catering for a very limited market who would not be buying NZ Marmite anyway.

I have to admit that I passed up on the Skippy cornflakes in New World and went for the Pam's option last night for a similar reason to Voula's. And will continue to do so where the option is easily available to me.

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Good for you! It seems such businesses only understand when hit in the pocket.

How is such a business threatening to Sanitarium's brand? We can convince ourselves of anything if we make the effort.

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Sanitarium had no option. If you don't protect your trade mark you leave it vulnerable to removal from the trade marks register and then you have no trade mark. It's not about stopping this one individual, it's about protecting the brand.

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Good on Sanitarium. They are entitled to protect their rights against fraudulent attempts to trade on some one else's brand.

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OK, so they bought the rights to the name. So did that give them the right to modify it to beyond recognition? If not illegal it should be...

Who in their right mind will add sugar and caramel to what is a salty product, you have to be wacko to alter the product and then still want to lay claim to the name. Shame on Sanatarium!

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Sanitarium would have more of a leg to stand on if it worked the same way around. However NZ stores in the UK stock NZ Marmite without any lawyers getting involved - probably as Unilever understand that the negative goodwill outweighs the tiny impact on sales that a ban would have.

The main thing that annoys me about this though is that Marmite shouldn't be a trademark (like Radler). Given that marmite is a traditional shaped casserole dish from France ... and as Sanitarium don't sell their yeast spread in a marmite (or marmite shaped jar); it is difficult to comprehend why they use the name!

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having been forced to use Vegemite... I think I'll stay there......
Vote with your feet

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I too, find it bemusing that people can be 'appalled' that any business will defend its brand rights. Various comments have accused Sanitarium of being 'bullies'. It is not bullying to request that your legal rights are not infringed. Others have cited Sanitarium's tax structure as indicative of what a big bad company they are. That, of course, is irrelevant to this case. Mr Savage's legal argument is that the two products are distinguishable by name and packaging. It should be a short session in court for Mr Savage.

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Why would you call your product "Ma'amite"? - I am not sure he would sell many jars in the Blues franchise area at the moment.

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He didn't. Proper Marmite released a temporary rebrand to coincide with the Queen's diamond jubilee. He has simply sought out the rebranded jars to avoid importing the same brand as the NZ Marmite.

Which seems reasonable as there is absolutely no way that they can be confused now - and wasn't beforehand anyway!

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