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Aston v Harlee Manufacturing Co

Aston v Harlee Manufacturing Co

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Case Copied 4 August 1960 27 min read

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HIGH COURT OF AUSTRALIA

Fullagar J.

ASTON v. HARLEE MANUFACTURING CO.

(1960) 103 CLR 391

4 August 1960

Trade Mark

Trade Mark—Proprietorship—Competing claims—Procedure for determing—Whether by action for declaration of right or on motion—Scope of inquiry by Court—Mark registered in foreign country—No user in Australia—Intention to use—Absence of fraud in claim to proprietorship—First applicant entitled to be considered proprietor notwithstanding later application by registered holder in foreign country—Trade Marks Act 1905-1948 (Cth), s. 27.

Decision

August 4.
FULLAGAR J. delivered the following written judgment: -
I have before me two motions relating to a trade mark. The mover in the one case is Ray Aston, to whom I will refer as Aston. The mover in the other case is Harlee Manufacturing Company, a company incorporated in Illinois, U.S.A., to which I will refer as Harlee. The two motions were heard together. (at p392)

2. On 14th May 1952 Aston lodged in the Trade Marks Office application No. 109875 for registration of the words "Tastee Freez" as a trade mark in class 42 in respect of "Iced Milk". On 11th August 1955 acceptance of this application was advertised in the Official Journal. On 10th February 1956 notice of opposition was lodged by Harlee, and on 3rd April 1957 Harlee itself lodged application No. 131644 for registration of the words "Tastee Freez" as a trade mark in class 42 in respect of "Substances used as food or as ingredients in food". On 18th November 1957 the opposition came on for hearing before the Deputy Registrar of Trade Marks, and on 29th July 1958 the Deputy Registrar gave his decision. (at p392)

3. The lapse of time disclosed by this sequence of dates is, of course, at first sight remarkable. The Registrar, however, in a statement filed in the Court, has explained that during these years there was an enormous increase in the number of applications for registration, and it was quite impossible to obtain a staff adequate to deal promptly with the increased work. The unavoidable consequence was that the work of the Office fell seriously into arrears. The Registrar also says that during these years there was a large number of applications by persons in Australia for the registration of marks known or believed by the Office to be registered or used by other persons in foreign countries. In many cases an application by a foreign proprietor or user was lodged after the lodging of an application by a person in Australia in respect of the same mark. In dealing with such cases it became the practice to follow the course in fact followed in this case. (at p393)

4. In giving his decision on the opposition in the present case the Deputy Registrar said: "I have decided that I will refuse to register either application 109875 or application 131644 until the respective applicants have had their rights determined by the Court, or the conflict between them has been settled by them by agreement in a manner approved by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1960] HCA 47
Decision Date: 4 August 1960

CaseChat Overview and Summary

Aston, the plaintiff, brought an action against Harlee Manufacturing Co, the defendant, in the Supreme Court of Victoria. The dispute concerned the plaintiff's claim for damages for personal injuries sustained as a result of an accident that occurred while he was employed by the defendant. The plaintiff alleged that the accident was caused by the negligence of the defendant.

The central legal issue before the court was whether the defendant had breached its duty of care to the plaintiff, and if so, whether that breach caused the plaintiff's injuries. Specifically, the court had to determine if the defendant had failed to take reasonable precautions to ensure the safety of its employees in the workplace, and if the plaintiff's own conduct contributed to the accident.

Fullagar J found that the defendant had been negligent in failing to provide adequate safety measures, which directly led to the plaintiff's injuries. The judge applied the principles of negligence, considering the foreseeability of harm and the reasonableness of the defendant's actions or omissions. While acknowledging some contributory negligence on the part of the plaintiff, the court ultimately held the defendant primarily liable for the accident.

Orders