The doctrine stipulates that the scope of a patent is not confined to the literal terms laid in the claims; instead, it embraces all the equivalents to the claims described in the said application. In the absence of such a doctrine, the true essence of the patent and the monopolistic rights would never be realized to their full potential as it would enable the competitors to make unimportant changes to the invention to claim another set of rights altogether. The doctrine embraces fairness while affording appropriate protection to the proprietor of the rights ensuing from the patent.
The ‘Doctrine of Equivalence’ states that there are chances of non-literal infringement if an element of an accused product or service and a claimed element of a patented invention are found to be legally equivalent. It broadens the ambit of the patentee’s right as it enables him to claim those rights that are inconsequential alterations to the invention, which may not be expressly covered in the original claims. Therefore, it prevents fraudulent acts of substituting obvious equivalents for those elements in the claims that are not covered due to the limitation of language. However, it does not include within itself those equivalents that belong to the state of the art to arbitrarily extend the scope of the patent.
The doctrine may be invoked if the allegedly infringing device “performs substantially the same function in substantially the same way to obtain the same result.” The said doctrine is limited in scope through the application of different tests that are later discussed in this article.
What is an Equivalent?
As per Graver Tank & Mfg. Co vs. Linde Air Prods Co, a patentee may invoke this doctrine to proceed against the producer of a device if “it performs substantially the same function in substantially the same way to obtain the same result,” as has also been mentioned above. Here, the alleged infringer’s invention will be looked at as a whole without bifurcating the claims. However, the courts took a turn in their approach after this case and introduced a certain degree of uncertainty in an attempt to evolve the doctrine.
In the Warner-Jenkinson case, the court proposed that “equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case.” The court shall look into greater depths while assessing the purpose of each ingredient used, the qualities it possesses when it interacts with other components, etc.
How to Determine Whether an Element is an Equivalent?
For discovering whether an element is an equivalent of another, the following two factors shall be taken into consideration:
The test of equivalence
The legitimate limitation to equivalents
As mentioned above, to assess the test of equivalence, the following legal tests have been evolved:
All Elements Rule: As per this rule, infringement may be established if the allegedly infringing invention performs substantially the same overall function in substantially the same way to obtain substantially the same overall result as the claimed patent. Each element of both the inventions is put into brief comparison to discover infringement. If the product does not contain a literal or equivalent element for each claim limitation, then there can be no infringement.
Tri-Partite Test: This test has emerged from the ‘All-Elements Test,’ which states that infringement may occur when the infringing invention “performs substantially the same function in substantially the same way to obtain the same result” as the claimed invention.
Insubstantial Differences Test: This test rests on the fact that if an adequate difference between the alleged infringing device and the claimed invention can be made out, the question of infringement can be legitimately eliminated. However, where the difference is merely insubstantial, the infringement is said to have occurred following the principle laid under the doctrine of equivalence.
Obviousness Test: The said test has not been put to great use until yet. The test stipulates that where the difference between the two inventions (allegedly infringing and claimed invention) is such that it is non-obvious, the same is said to have a substantial difference, and thereby, the infringement is said to not have occurred. However, if the difference is obvious, the difference between the two inventions is insubstantial, and therefore, the allegedly infringing invention is caught under the doctrine of equivalents.
Known Interchangeability Test: Under this test, the onus of proving that the element in question is known to be interchangeable with elements within the claimed invention lies on the patent holder to successfully bring an infringement action.
The legal bars to the doctrine of equivalence may also prevent the application of the said doctrine. Therefore, to successfully assert infringement through the application of this doctrine, in addition to the tests of equivalence, the rights holder has to prove that the uncovered equivalence falls beyond any legal defense. There are four major legal bars, which are as follows:
Prosecution History Estoppel: This means that the claims of a patent shall be read in the light of the prosecution history or the process through which the relevant patent office issued the patent, which includes rejections, cancellations, and amendments. A patent holder is estopped from claiming equivalence of those claims that he surrendered by way of alternation or amendment of his application. Therefore, if one narrows his claims, it is said that the claims had once been mentioned, but due to amendment, were either narrowed or removed, and thus, are now relinquished. Thus, such antecedent claims cannot be claimed.
Public Dedication: There are instances where the proprietor discloses a few elements in his claims but does not necessarily claim them, for instance, mentioning an alternative of what is claimed. Here, what is not claimed becomes a part of the public dedication.
After Arising Equivalents for Means-Plus-Function Claims: As per this bar, a patent holder is barred from claiming equivalence over those elements that have been developed after the patent was granted. Therefore, if an invention is to be an equivalent of a claimed invention, it should be so before the patent was granted.
Prior Art Patentability: This bar creates a limitation upon the patent holder by stating that where a person skilled in the art would be able to conceive that the equivalent claimed was that which was already known of, the claims of the claimed patented invention cannot be broadened to cover more than what it should be eligible for. It prevents the rights holder from gaining rights over elements that he has not rightfully adduced.
Inherent Defects and Issues Emanating from the Doctrine
The doctrine of equivalence suffers from some defects. It is criticized for the lack of certainty since there is no precise legislative framework. The doctrine has been evolving since the time of its inception, yet it has bred ambiguities. Many courts have addressed that the tests laid above may not suffice the requirement to adjudge equivalence.
The doctrine can have far-reaching effects since it may lead to broadening of claims despite the checks and balances held through the determination of equivalent claims and bars on equivalents. It may so happen that in furtherance of uncovering non-literal infringement, the doctrine may help envelop even those elements that may only be impliedly found in the Patent Application. It is directly in conflict with the public notice function since once a patent is granted, the public is put on notice as to what is protected and what is not; thereby, permitting exploration of what is not covered within the granted application. If, after reviewing the application, an invention is created that falls beyond the scope of the invention; but, which is later found to be infringing due to incidental non-literal overlapping, the public-notice function fails. The same is a concern that is also often brought up by those inventors who try to design around the invention in good faith.
The doctrine of equivalence may suffer from the previously mentioned drawbacks; however, its importance cannot be denied. It is of significant importance to successfully plead a case of non-literal infringements since it helps restore the balance of monopolistic rights and public disclosure. It helps overcome the impact of overemphasizing literal terms and words used in a patent application to uncover the essence of the same to understand its scope and nature. In the absence of such an invention, the inventor would be deterred to make a complete disclosure since it would be easier to ride on the patented invention by making unsubstantial changes and twisting the bare wordings of the claimed invention. ✅ For more visit: https://www.kashishipr.com/
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It is estimated that there are about 20 million e-commerce stores selling products on the internet globally today and generating more than one trillion USD in revenue. The world’s largest markets for e-commerce are the United States of America, China, the United Kingdom, etc., with electronics, fashion, books, and tickets being the top categories for e-commerce. The key advantages of e-commerce circle around the fact that it removes the limitations of time and distance. In the process, e-commerce usually streamlines operations and helps to achieve lower costs. Consumers are shifting their preferences from physical to the online mode today, and to meet this demand, several brands have started working towards optimizing their online presence, protecting their brand equity, and driving profitable e-commerce sales growth. Examples of some online marketplaces include Amazon.com, Alibaba, eBay, and Etsy.
In recent years, there has been tremendous growth in e-marketplaces. However, with the rise of these e-commerce websites, the menace of counterfeit products has also increased manifold. The size of the problem posed by the counterfeiters is astounding. According to the estimates of FBI, Interpol, World Customs Organization, and the International Chamber of Commerce, approximately 7 to 8% of the world trade every year is in counterfeit goods. The problem of counterfeiting not only puts brands at risk of their trademarks, brand value, and goodwill getting damaged but also puts consumers at the risk of receiving sub-standard quality products, which may ultimately affect their health and wellbeing.
Counterfeit Products Online
Counterfeit goods can include fake designer clothes, bags, watches, accessories, perfumes, pirated DVDs, CDs, smartphones, computer games, and many more. They can also include medicines and components of automobiles and aircraft.
Counterfeiters have also taken note of the growth of the online ecosystem and have adapted their approach accordingly. The growth of e-marketplaces has also helped the counterfeiters sell their counterfeit goods using these platforms. In an e-marketplace, product or service information is provided by multiple third parties, whereas transactions are processed by the marketplace operator. Consumer transactions are processed by the marketplace operator and then delivered and fulfilled by the participating retailers or wholesalers. In general, since e-marketplaces aggregate products from a wide range of suppliers, the selection is usually wider, availability is higher, and prices are more competitive than in vendor-specific online retail stores.
Apart from e-commerce websites, counterfeiters have also started creating fake websites that mimic the look and feel of the genuine brand’s website. Some fake websites can be used by scammers to trick consumers into paying for goods that will never arrive and also to steal the consumer’s credit card and bank details. These fake websites can look very convincing, and it may be difficult to tell them apart from the actual website.
How to Spot Counterfeits Online?
Looking for counterfeit products on e-commerce websites requires a specific strategy to be involved. First, the geographical region where the counterfeits are most likely being sold needs to be identified. Thereafter, the most popular e-commerce websites in that region have to be identified. For instance, Amazon is the most popular in the United States and Taobao in South East Asia.
While searching for names that are identical or similar to a company’s brand or product name, or when searching for counterfeit products on these e-commerce sites, one should type in the following keywords that could allow quick identification of counterfeit products:
Brand name/Product name + ‘Grade AAA’
Brand name/Product name + ‘Replica’
Brand name/Product name + ‘Inspired’
*The search for a brand or product name should also be done in local languages.
Some useful indicators that counterfeit or unlicensed products are being offered for sale are as follows:
The products are sold at a price much cheaper below their market value;
The seller is not part of the official distribution or authorized channel;
The seller has a large number of listings and many units for sale; and
The product is listed several times, with a wide variation between prices for each listing.
A more recent way of spotting counterfeit products gaining popularity is through Artificial Intelligence (AI) powered image analytics. The AI relies on an algorithm to compare images and read text information. An example of this technology is IBM’s Crypto Anchor Verifier, which has combined blockchain technology with AI to verify authentic products. It relies on neural networks and video analytics to detect counterfeits. It analyses the properties of products to identify whether they are authentic or fake. The solution can also run on smartphones, making it easy to use and cost-effective.
Dealing with the Challenge
Most often, several e-commerce websites are willing to work with brand owners to take down counterfeit products that are being sold on their sites. Some of them also take product authenticity very seriously and have even launched their guidelines to inform the users and sellers that the sale of counterfeit products on their platforms, including any products that have been illegally replicated, reproduced, or manufactured, is strictly prohibited.
E-commerce sites also provide general terms and conditions in their agreements with sellers, including ad hoc policies concerning the liability for selling of counterfeits, thereby promoting the responsibility of the sellers concerning the goods sold.
Another approach is requesting an immediate take-down notice to the e-commerce website whenever a brand thinks that its Intellectual Property Rights (IPRs) have been infringed. It is a more proactive approach and is extremely useful in countries where Intellectual Property (IP) enforcement is challenging or online infringement is too widespread and requires prompt action on the part of the proprietor. Usually, the documents that e-commerce sites would need to be submitted along with the take-down notice are as follows:
Proof of Identity – Business incorporation certificate for companies, identification document such as a passport for individuals.
Proof of IP Ownership – IP Registration Certificate or Copyright Recordal Certificate is necessary.
Webpage Links – The exact links to the web pages of the infringing listings and details of the listings that you require to be removed.
The e-commerce site will then handle the complaint according to its policy and terms to remove the counterfeits. Usually, the alleged infringer will then receive a notification concerning the IPR complaint from the e-commerce website. The alleged infringer can submit a counter-notification showing that he or she is an authorized party or can confirm the case. In case of a counter-notification, the IPR owner can either accept the counter-notification or submit the dispute case. According to the policy of the e-commerce sites, the company may have created specific programs where IPR holders can register as a member to provide in advance IP ownership by filling in a standard form notice. The dispute will be handled through this program, and they will decide whether the listings will be deleted or not. (For example, eBay follows this system under its VeRO Program).
Best Practices: Integrating E-Commerce Counterfeiting in IP Strategy
The battle against counterfeit products online can only be won with an effective IP enforcement strategy that makes room for an action plan against counterfeiting. The strategy has to be a blend of not only protecting your IP beforehand but also monitoring the marketplace for counterfeiters actively.
Online marketplaces, search engine results, and social media should be monitored regularly, and infringements acted on quickly.
Trademarks should be registered in the jurisdictions where the brand sells, manufactures, or even transports its products.
Domain names need to be registered that cover the trademark plus associated products to reduce the chances of cyber-squatting.
IP should be registered with the customs authorities of each country where the brand trades since they are the ones who can prevent counterfeits from entering the market at the very first point of contact, i.e., the borders of the country. Most countries today have in place a system of recording one’s IP with the customs.
Takedown notices, cease and desist notices, etc., should be utilized as and when needed to prevent counterfeiting at the first instance.
When counterfeiting happens in a country that is unknown to the company, the help of local IP experts should be sought. They are usually familiar with infringement cases and have close relations with enforcement bodies such as customs, investigators, and the police. It is worth noting that many counterfeits are advertised in local languages or posted on local websites.
Educating the consumers is imperative. Consumers are a significant ally in minimizing the sales of counterfeit goods. They need to be made aware of the risks of buying from unauthorized sources.
Online counterfeiting can heavily impact any company, affecting revenues, trade channels, relationships, customer experience, marketing effectiveness, legal liability, and more. Ignoring it is not an option since both the brand’s reputation and goodwill are at stake. Fortunately, taking action can be fairly straightforward. Implementing best practices can work efficiently for any brand. To effectively stop counterfeit sales, the strategy must focus on both distribution and promotional channels for counterfeit goods, i.e., the e-commerce websites as well as the physical channels of trade. ✅ For more visit: https://www.kashishipr.com/
Trademark refers to an property which incorporates a recognizable sign/symbol/words that represent a brand and distinguishes one brand from the opposite . it's a singular identity of a brand.
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Advantages of Trademark Registration in Agra
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Documents required for people & Sole Proprietorship
Any individual can easily get trademark registration in Agra. there's no need for forming a legal entity or business entity to register a trademark. The documents needed are:
Copy of the brand . just in case logo isn't provided, the trademark application are often filed for the name.
Signed Form-48. Form-48 may be a authorization from the applicant to a Trademark Attorney for filing the trademark application on his/her behalf.
Identity Proof of the individual or Proprietor.
Address Proof of the individual or Proprietor.
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With the emergence of a cosmopolitan touch in the food and beverage industry through the introduction of celebrity chefs and mixologists as well as experimental, custom-made, creative dining experiences all over the world, culinary creations, including drinks and food, have become a crucial and valuable business asset. Like any other asset, the question of protecting recipes and corresponding assets through the application of Intellectual Property (IP) laws has gained momentum.
The protection of a recipe under the IP system is nothing short of a challenge. Where a right is sought based on the very nature of the recipe, including the combination of ingredients used and the method of cooking deployed through constant trial and error, granting Intellectual Property Protection is very questionable. The courts have examined these issues for long enough as much as dating back to 1924. However, with the rise of culinary masters, celebrity chefs, and food entertainment (reality shows, cooking shows, etc.), the number of such cases has witnessed an incline. However, there is still a dearth of cases that could help analyze the circumstances under which a recipe may be protected through copyright or in the form of trade secrets. In addition to the same, there is no consensus among the courts that have looked into the said issues as to when a recipe should be entitled to protection.
Copyright and Recipes
Copyright Law protects works underlying original works of authorship, which are fixed in a tangible medium, and therefore, may include literary, dramatic, musical, and artistic works. It does not protect ideas, facts, products, processes, principles, etc.
Way back in 1924, the question of copyrighting recipes was brought forth the legal forum wherein the court found them to be constituting a valid subject matter of protection. It was the case of Fargo Mercantile Co. vs. Brechet & Richter Co., wherein a fruit nectar manufacturing company alleged the defendant to be breaching its copyright underlying a label affixed on its bottle. The labels constituted of a recipe as well as an emblem, both inclusive, which were copyrighted. The court said that the recipe is projecting an “original composition and serves a useful purpose of advancing the culinary art,” and therefore, shall be copyrightable. The court did not address that the recipe was merely a factual recitation of the procedure or process of making, which is beyond the scope of copyright.
The terms of extending protection over the years have gone more stringent, giving limited room and space to recipes. Now, a recipe must be accompanied by substantial literary expression even to be potentially copyrightable.
Another decision regarding the Copyright Protection of recipes was addressed in the case of Publications Intern Ltd. vs. Meredith Corp. The subject matter for the debate centered around two cookbooks, one belonging to the plaintiff and the other belonging to the defendant, both of which were a compilation of different recipes. The plaintiff alleged the defendant of infringing upon their copyright as twelve recipes were the same as the ones mentioned in the plaintiff’s cookbook. The court drew a careful analysis of the Act, which states that processes, systems, methods of operation cannot be copyrighted. The copyright in the said cookbooks was not over the nature of recipes dealt therein but the manner of presentation, the order of expression, etc. Since ingredients and recipes are a statement of facts and the process of making a dish, extending protection is not justifiable as a copyrightable subject matter for the defendant did not make any further addition than the fact itself. Therefore, the court decided very differently from its previous stance, as observed in the 1924 case. The same was held in the case Lambing vs. Godiva, where the plaintiff alleged the defendant of misappropriating her recipe of chocolate truffle that was written in an unpublished cookbook. The court held that “recipes are functional directions for achieving a result” and are excluded from copyright protection. Also, the law only protects the written recipe itself from being republished, but it would not prohibit others from manifesting the same in the form of a physical dish.
Therefore, it can be concluded that a recipe may be copyrightable if it is presented and expressed in a manner of literary and/or artistic creativity. A mere recipe cannot be protected. However, protecting a recipe through copyright is probably not the wisest choice because it can create issues in the operation of the business. The reason behind the same lies in the fact that it would be arduous to control the ones who make these recipes over their counters as the same are available for public exploitation.
Trade Secret and Recipes
The route of enforcing rights through protecting recipes by utilizing trade secrets is a much rather simpler trade-off. A trade secret will protect a recipe regardless of it being an idea, provided it gives a commercial edge and is a secret for which the firm makes an effort to maintain the said status of being a secret by keeping it away from the knowledge of a common man.
In the case of Buffets, Inc. vs. Klinke, the plaintiffs brought a case against another restaurant for misappropriation of their trade secrets over its recipe for very basic American dishes like American barbecue chicken and mac & cheese. The court held that to protect a recipe as a trade secret, the said recipe should be novel, and the information therein should be undisclosed.
Therefore, to be protected as a trade secret, the recipe has to project some degree of novelty and prove that the enterprise is receiving commercial benefit by keeping it a secret. The same was also witnessed in the case of Li vs. Shuman, where it was held that ‘common Asian dishes’ do not qualify for protection. Also, the court held that the head chef could not meet his burden of proving that the information underlying the said recipe derived independent economic value from not being generally known or readily ascertainable. Therefore, even if the process of making the recipe is novel, it should still be different from the processes used by the public in general by following the recipes made usually available.
The most common example is the Coca-Cola recipe, which is protected since 1891 through trade secret, even though there is a constant fear of it being reverse engineered, in the event of which there is no protection offered through any statute. It is, therefore, difficult to discern whether any other person has misappropriated a recipe or whether he merely relied on personal experience leading to skill development to come up with the like recipe. Since cooking is all about trial and error, it makes it even more difficult to prove that someone misappropriated a recipe. There is a possibility that someone could arrive at the same recipe or final product by incorporating a different process. Even then, it may be difficult to identify adequately what makes a process secret and unique.
Patent and Recipes
A recipe can be patent protected, provided it is novel, possess an inventive step, and is non-obvious of the existent state of the art. It can be an uphill battle since the applicant would need to project that the recipe has not been used by anyone across the globe, which can be a challenging task as there are recipes that cannot be found in the literature while others are a part of customary practice and are more difficult to trace.
In the food and beverage industry, the patent route for a recipe may not be the most preferred; however, the same is used to protect a new method of production or manufacture. An example of this is the meat substitute market, which is witnessing explosive growth in recent years. A California-based company, Impossible Foods, has many European patents for its plant-based food products.
As noted above, the protection of recipes under the IP system is very challenging, although not impossible. There are different routes to ensure different degrees of protection. However, the most sought method is that of trade secrets since they help to maintain a competitive advantage in the market without the time-barred restraint. Furthermore, a recipe may be well-guarded in addition to the application of the said laws by signing agreements and contracts to ensure non-disclosure. ✅ For more visit: https://www.kashishipr.com/