Mr Zogs Sexwax is an international brand of wax used to improve grip on surfboards. Zoggs makes goggles and swimming togs.
But just who can use the name Zoggs has led to a long-running rift between the two firms.
Zoggs, a swimming product company founded in Australia, has appealed against an Intellectual Property Office ruling against its application to trademark the word "Zoggs" in New Zealand.
Surfing product company Sexwax, established in California by Frederick Herzog in the 1970s, opposed the trademark as it produces a product called Mr Zogs Sexwax.
Mr Zog is Herzog's nickname and in 1972 he began producing Sexwax for people riding surfboards.
The Intellectual Property Office ruled in favour of Sexwax, having found Zoggs had acted in bad faith in its application to trademark "Zoggs".
The decision was appealed yesterday in the High Court at Wellington.
Appellant lawyer John Upton, QC, said there were a number of issues from the original ruling.
There was a "conflicting evidence situation" from which the office had incorrectly ruled to not register the trademark, he said.
A series of phone calls and emails beginning in the early 1990s between Herzog and Neil McConnochie, the son of one of the founders of Zoggs, were the basis of the bad faith claim.
McConnochie contacted Herzog in 1992 and formed a co-existence agreement whereby Zoggs could register a trademark in Australia for its range of goggles.
Herzog said he agreed to not oppose the trademark on "the founder's verbal promise to limit the products . . . to just swimming goggles".
In 1995, however, a trademark for Zoggs Toggs was filed in Australia and since then Zoggs Toggs swimwear had been sold.
By the late 1990s Zoggs Toggs were also being sold in New Zealand, predominantly through The Warehouse.
Herzog later opposed a 2007 trademark application for the US market.
Sexwax claimed a subsequent attempt to register the trademark in New Zealand was acting in bad faith based on the verbal conversation shared in 1992.
Upton said in the appeal that there were "competing versions of what actually happened" and Herzog's opposition to the 2007 application was US-specific rather than a general claim.
"Did it relate only to the US or did it have a global flavour?
"[The decision] runs fraud and bad faith together when they're different animals."
Justice Simon France said it was not clear to him what the claim of bad faith was sourced in.
"Claiming they somehow can forever and a day never apply for a logo anywhere in the world?"
Respondent lawyer Nigel Robb said bad faith should not be defined as requiring fraud or something at such a high level.
"What would ordinary business people find reprehensible?" Robb said. "McConnochie has said one thing to Herzog and then gone and filed a trademark application."
The hearing concluded with the judge reserving his decision.
© Fairfax NZ News through stuff.co.nz
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