–Sharon Armstrong, Attorney
Today’s post is brought to us by our friends across the pond – and across the Pacific Ocean. The Telegraph reports that the New Zealand Customs department has seized 2,000 jars of British Marmite on the grounds that they infringe upon New Zealand Marmite.
Marmite is known and sold throughout Britain and many former British colonies as a yeast paste that is the by-product of beer brewing. While other European countries produce a similar type of food marketed under specific brand names, such as Vegemite in Australia, Cenovis in Switzerland, and Vitam-R in Germany, both New Zealand and Britain boast a Marmite-brand product, which is produced by Sanitarium in New Zealand and Unilever in Britain. In New Zealand, British Marmite is sold under the “Our Mate” mark.
The importer of the British Marmite states that there is no infringement because the products are different, pointing to the facts that the jars in question were imported to commemorate Queen Elizabeth’s jubilee – and so say “Ma’amite” rather than “Marmite” and feature a special Union Jack packaging that differs from the regular packaging – and that the underlying products taste differently. However, there’s the rub; trademark law exists to protect consumers from purchasing one good and receiving another. Putting aside these facts, take a look at the below photograph – would you confuse these products?