a. Facts-
P and D sell perfumes. P developed a perfume formula and did NOT patent it. D
then copied same formula and advertised it to be the “same thing as Chanel No.
5 for much cheaper”. P sued for injunction against D to prohibit D from selling
the same formula as P.
b. Procedural
History- Trial Ct granted preliminary injunction for P, Ct of appeals reversed
c. Issue-
Whether a company can (somewhat) recreate another company’s product and sell it
claiming to be the “same as another company’s product”, under property law and
while it is not patented
d. Holding-
Yes, a company can recreate another company’s product and claim it to be the
“same as” the others, so long as no patent is filed AND copying party does NOT
represent their item as the others
e. Rule-
Absent a patent, anyone can recreate another’s product and sell it claiming
that the product is “as good as the others”…so long as the copier is NOT
representing their product as the other’s
f. Rationale-
While the copycat’s actions may be disapproved at first, the public was
well-served by his actions because he was able to give the public a comparable
good for a lower price
g. Notes:
i.
Copying is the life blood of businesses…it
is OK for businesses to sell comparable goods at a lower price. POLICY: This
selling at a lower price benefits the public by saving them money
ii.
By taking his “free ride”, he has served
an important public interest
iii.
You can ONLY patent something that’s new,
you can NOT patent something that you previously invented
iv.
In the U.S., you can make ANY comparative statements you want
v.
Comparative statement vs.
Misrepresentation
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