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."
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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