Aston v Harlee
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''Aston v Harlee Manufacturing Co.''. is a significant legal decision involving Australian
trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from othe ...
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. It involved separate businesses which both sought to use the Tastee Freez name in Australia. Both men had
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businesses which were planning or contemplating expansion of
soft serve Soft serve, also known as soft ice, is a frozen dessert, similar to ice cream but softer and less dense due to air being introduced during freezing. Soft serve has been sold commercially since the late 1930s in the US. In the US, soft serve is ...
iced milk Ice milk, or iced milk, is a frozen dessert with less than 10 percent fat, milk fat and the same sweetener content as ice cream. Ice milk is sometimes priced lower than ice cream. A 1994 change in United States Food and Drug Administration rules ...
restaurants into Australia. Aston, formerly based in
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,
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, United States, was a
Dairy Queen Dairy Queen (DQ) is an American chain of soft serve ice cream and fast food restaurants owned by International Dairy Queen, Inc. (a subsidiary of Berkshire Hathaway since 1998) which also owns Orange Julius, and formerly owned Karmelkorn and ...
operator there who moved to Sydney. Harlee Manufacturing Co., run by its founder L. S. Maranz, was a business similar to Dairy Queen, based in
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, USA. The court maintained that authorship does not require the applicant be the first and true inventor of the mark. (Aston's application for special status and use of the name first, in 1952. Notice of opposition was filed by Harlee in 1956, and its own registration application was submitted in 1957.) The court further stated that trademark registration and determining its award is a question of whether anyone else has a right to use the word prior to that of the person claiming authorship. The court followed '' Shell Co of Australia Ltd v Rohm and Haas Co'',. that "right to registration depends...on proprietorship of a mark" but like ''Shell'' adheres to the English case ''In re Hudson's Trade Marks''''In re Hudson's Trade Marks'' (1886) 32 311. when the "trade mark...has never eenused...at all". ''Shell'' continued that "an application to register a trade mark so far unused must, equally with a trade mark the title to which depends on prior user, be founded on...the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration". Like '' The Seven Up Co v OT Ltd'',. the court would not give weight to the use of the registered mark in foreign locations. Even though Aston deliberately copied or adopted or intended the use of the registered name from a foreign country, there was no evidence of fraud. Further, the court decided:


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*{{cite web, url=http://www.austlii.edu.au/cgi-bin/LawCite?cit=1960+HCA+47 , title=Cases and articles referring to ''Aston v Harlee Manufacturing Co'' , website=LawCite High Court of Australia cases 1960 in case law 1960 in Australian law