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Marmite: A Sticky Legal Situation

You may know what it is, but you may never have tried it.  Or you may have tried it and screwed up your nose at the strange salty flavor.  However, to many people – myself included – it is “black gold.”  So I panicked along with many other New Zealanders when supplies of Marmite ran out around this time last year due to the closing of the factory in Christchurch in 2011 following the earthquakes there.  It was Marmageddon.  And it attracted international media attention.

A photo of Vegemite and (New Zealand) Marmite. (Photo by Flickr user AZAdam.)

Most people here in the U.S. probably weren’t aware of the calamity.  And if they were, they might have said that there are supplies in the British stores and international aisles of supermarkets all over the country and asked – why doesn’t that just get shipped to New Zealand?  To which I would respond: No! It’s the wrong stuff!  The “Marmite” sold in the U.S. is very different from the “Marmite” that I grew up eating on toast and crackers.  More on this below.

But now it’s back.  The makers of New Zealand Marmite started restocking supermarket shelves last week  (one store even jumped the gun a day early).  The relief and excitement was evident throughout the country – and was certainly curious (or “weird“) enough to the world’s media for various news outlets to cover the end of Marmageddon.  I’ve managed to ration my one jar for a very long time, and will have to continue to do so until my family sends me more (putting me in the same boat as expat Kiwis all over the world, I’m sure).

The history of Marmite, including in relation to the law, is quite interesting.  It was apparently invented in the 19th century by a German scientist who accidentally discovered that brewers yeast could be “concentrated, bottled and eaten.”  Manufacturing of the product started in a factory in England in 1902, and this product was exported to New Zealand where a health food company, Sanitarium, acquired the exclusive right to distribute Marmite there and in Australia in 1908.  Later, after World War I interrupted supply from England (Marmite was included in soldiers’ rations), the company started manufacturing Marmite in Christchurch under license, and in 1920 it registered the Marmite trademark in New Zealand and has held it ever since.  Then, in the 1930s, Sanitarium began experimenting with different recipes, and the uniquely flavored New Zealand-style Marmite was manufactured from the 1940s.  In particular, it includes some sugar and caramel to add a little sweetness to the saltiness – which I’m sure was, and is, abhorrent to the British Marmite purists.

Three types of Marmite packaging from 2012. Ma’amite, in honour of Queen’s Jubilee, Marmite XO, extra strength, and Marmite heart shaped individual packs. (Source: Wikimedia Commons)

Sanitarium has also made considerable changes to the packaging of the New Zealand form of Marmite over the years.  The oddly shaped jar that the British version comes in actually reflects the earthenware French cooking pot that is Marmite’s namesake (the jar is apparently so difficult to get the stuff out of, the British maker made a special knife to assist: the Marmife).  So, while the names are the same, the two products are now quite different in terms of branding and flavor.  Marmite remains part of the heritage and culture of both countries – maybe even a source of national identity and pride (perhaps a way of distinguishing ourselves, since no one else seems to be able to stand the stuff!).

The legal situation was highlighted last August when a British expat, who runs a store selling British goods to other expats, tried to import about 2,000 jars of British Marmite into New Zealand.  The shipment was impounded by the Customs Service pursuant to a Trade Mark Customs Notice registered with the agency by Sanitarium.  Such notices can be put in place by trademark owners under the Trade Marks Act 2002 and essentially request that any goods on which an infringing sign is used be detained when they come into the control of Customs.  The goods must then be held for ten working days or, if proceedings are instituted within those ten days, until the proceedings are determined.

In order to continue the detention of the British Marmite, Sanitarium did issue proceedings against the importer.  In its action, it sought an order that the British Marmite be forfeited to the government or destroyed, as well as damages and an injunction preventing further shipments of the product.  These remedies are all available under the Trade Marks Act.

‘Our Mate’ – Jar of UK Made Marmite Spread branded for sale in Australia and New Zealand. (Source: Wikimedia Commons)

British Marmite is available in New Zealand (and Australia) with the label “Our Mate“.  However, the imported Marmite was apparently a special edition for the Queen’s Diamond Jubilee and was labeled “Ma’amite,” although the back label still included the trademarked name three times.  One New Zealand lawyer posited that while the court would likely issue an order in the case, it might not provide the extent of relief sought by Sanitarium for various reasons.  He considered that “it is strongly arguable that over-stickering the identical mark MARMITE® present on the back of the relevant jars would remove all infringing marks from the product and that, therefore, an order releasing the shipment to Savage Ltd, which required it to undertake such over-stickering before placing the goods on sale, would be a just result in the circumstances.”

In the end, the case was settled out of court last month along those same lines:  the terms of the agreement allow the importer to sell the product as long as the word “Marmite” on the back of the jars is covered.  The importer said that he would continue to import British Marmite but under a different label, which is allowed by the agreement.

As pointed out by the lawyer mentioned above, New Zealand Marmite is sold in UK stores that sell New Zealand food products to Kiwi expats.  The Marmite trademark and various associated label designs is of course registered in the UK to the manufacturer, Unilever.  However, it seems that similar measures are in place there in terms of relabeling the New Zealand product to cover the infringing term.

You may have noticed that I have not yet referred to Vegemite.  This is also a yeast-extract spread that is supposedly similar to Marmite, but Marmite-eaters like myself will tell you that it tastes completely different.  Production of Vegemite started in 1923 in Australia and was later made in New Zealand as well.  Today it is only made in Australia but is still eaten by both Kiwis and Aussies.  It is similarly revered by those that love it, leading to the age-old debate between the two camps.  This is why there was a bit of an outcry when the Prime Minister of New Zealand said he wasn’t too worried about Marmageddon, since he likes Vegemite just as much as Marmite!  Luckily, a former All Blacks rugby coach stepped in and told the country not to “freak” because Marmite would be back.  And now that it is, we can all get back to our daily ritual of carefully spreading just the right amount of Marmite on our toast each morning.

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