Presentation on theme: "1 Craig A. Ash Oyen Wiggs Green & Mutala LLP Tel: 604-669-3432."— Presentation transcript:
1 Craig A. Ash Oyen Wiggs Green & Mutala LLP E-mail: firstname.lastname@example.org email@example.com Tel: 604-669-3432
2 Course Materials Casebook Statutes: Consolidated Intellectual Property Statutes and Regulations (Carswell) Reference materials: -Fox on Canadian Law of Trade-Marks and Unfair Competition (4th. ed. 2002). -Robic-Leger (ed.), Canadian Trade-Marks Act Annotated (current). -Industry Canada, Trade Marks Examination Manual (current). -Trade-marks Law of Canada (1992), G.F. Henderson (ed.).
3 Introduction Federal Statute - Trade-marks Act Provincial corporations statutes deal with corporate names but do not give trademark protection to those names.
4 Introduction Trademark rights are national. They must be separately protected in each country of interest. Registration is national, not provincial. In Canada, trademark rights accrue primarily through use, not registration. Trademarks are used and registered for specific goods/services. The identical trademark can be owned by different parties for different products, e.g APPLE for computers or for recordings.
5 Introduction Kirkbi AG v. Ritvik Holdings Ks patents for a toy block configuration expire. R sells identical blocks under a different name. K asserts Lego indicia as a trademark. Ks claim for enforcement of such trademark by a passing-off action under Section 7(b) and at common law fails.
7 …Kirkbi AG v. Ritvik Registered vs. unregistered marks. Trade-Marks Act as a national regulatory scheme for registered and unregistered trademarks. Federal trade and commerce power: general trade and commerce affecting Canada as a whole. Constitutionality of Trade-Marks Act and of Section 7(b). Proper scope of trademarks vs. patents. Doctrine of functionality. Unfair competition. Enforcement of unregistered trademarks by passing-off action under Section 7(b) and common law.
8 Introduction Section 2 defines a trademark as: (a)a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others, (b)certification mark, (c)a distinguishing guise, or (d)a proposed trademark.
9 A mark can be something that is just descriptive or decorative and not used for purpose of distinguishing. But that is not a trademark. Section 2 defines distinctive in relation to a trademark as meaning: –a trademark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them. Distinctiveness
10 Distinctiveness Inherent distinctiveness and actual distinctiveness: Inherent: continuum from highly distinctive to descriptive or generic. –EXXON…KODAK…APPLE…MICROSOFT …EXTRA…MCDONALDS…NYLON. Actual distinctiveness: depends on inherent distinctiveness and the activities of the user and third parties.
11 Distinctiveness Examples of trademarks that would not be distinctive: –Two unrelated companies use the same trademark for similar products. –Trademark is generally used to describe the product, e.g. NOTEBOOK for computers, FRENCH for wine. –Trademark is a generic term for the product, e.g. NYLON.
12 Distinctiveness How does a foreign mark that is not used in Canada affect the distinctiveness of a Canadian mark? 1. Bojangles (application) 2. Philip Morris (post-registration)
13 Distinctiveness Bojangles Issue is the distinctiveness of a Canadian mark in the context of applying to register it. The foreign marks reputation in Canada must be substantial, significant or sufficient. Survey evidence: importance and perils.
14 Distinctiveness Philip Morris v. Imperial Tobacco: Issue is the distinctiveness of a Canadian mark in the context of an action to invalidate a registered mark. Significance of the duty-free sales in Canada. Potential for loss of distinctiveness if mark is not policed.
15 Distinctiveness Astrazeneca v. Novopharm: Application to register the colour and shape of a tablet as a trademark. Is it distinctive of the manufacturer? Significance of other tablets in the marketplace with the same appearance for (a) all medicines, or (b) all medicines for the same condition. Significance of other identifying indicia on the product, e.g. the brand name, the DIN number. Subtext: control of the appearance of generic copies of a proprietary medicine when the patent expires.
16 Acquired Distinctiveness Section 12(2): A trademark that is not registrable by reason of s. 12(1)(a) or (b) is registrable if it has been so used in Canada by the applicant or his predecessor-in-title as to have become distinctive at the date of filing an application for its registration.
17 Acquired Distinctiveness Section 12(2) applies to marks that are: –1. Names. s. 12(1)(a) –2. Descriptive or deceptively misdescriptive of character or quality. s. 12(1)(b) – 3. Geographically descriptive. s. 12(1)(b)
18 Acquired distinctiveness Recognizes fact that descriptive marks and names can acquire a secondary meaning as a trademark, e.g. CARTIER, EVEREADY, MCDONALDS. Mark is registrable if it has secondary meaning as of filing date. Must prove mark is recognized by a substantial portion of Canadian public as distinguishing the source of the goods/services. Molson v. John Labatt.
19 Distinguishing Purpose Where a mark is used for a purpose other than to distinguish the goods or services of the user, e.g. to inform users that the product can be used with some other product identified by the trademark, the mark is not being used as a trademark. Bombardier v. British Petroleum.
20 What is use? Section 2 defines use in relation to a trademark as: –any use that by section 4 is deemed to be a use in association with wares or services Use under Section 4
21 Section 4 provides: (1)A trademark is deemed to be used in association with wares, if at the time of the transfer of the property in or possession of such wares, in the normal course of trade, it is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred. Use under Section 4
22 (2)A trademark is deemed to be used in association with services if it is used or displayed in the performance or advertising of such services. (3)A trademark that is marked in Canada on wares or on the packages in which they are contained is, when such wares are exported from Canada, deemed to be used in association with such wares. Use under Section 4
23 Use under Section 4 Use with wares – Section 4(1) –Mark must be associated with the wares at the time of transfer of wares to buyer, in the normal course of trade –Nissan Canada Inc. v. BMW Canada Inc.
24 Use under Section 4 … or it is in any other manner so associated with the wares … –BMB Compuscience v. Bramalea (software)
25 Use under Section 4 … in the normal course of trade … –Siscoe Vermiculite (samples) –Grants of St. James (test marketing) –Saft-Societe (single sale)
26 Use under Section 4 Use by export – Section 4(3) –Use on exported goods is deemed to be use in Canada.
27 Use under Section 4 Use with services – Section 4(2) –Use or display in the performance or advertising of services is deemed to be use. –Is the advertising of services in Canada, where the services themselves are provided only outside of Canada, a use under section 4? Porter v. Don the Beachcomber Saks v. Registrar
28 Entitlement – Section 16 Material dates for determining entitlement to register a trademark as between competing parties: –Section 16(1) – Application based on use or making known: date of first use or making known. –Section 16(2) – Application based on use and registration abroad: date of filing or priority. –Section 16(3) - Application based on proposed use: date of filing or priority.
29 Entitlement – Section 16 Effigi Inc. v. Attorney General Issue of determining entitlement to register under Section 37 in the context of two co-pending applications to register where one or both claim prior use. T files after E, but claims use of the mark since prior to Es filing date. Held by FCA: Ts application is refused because T is not the person entitled under s. 37. Entitlement under s. 37 is not the same as entitlement under s. 16. It is based on application filing order, without regard to claims in an application to prior use. The alleged prior use can be made the subject of evidence in an opposition to the earlier-filed application.
30 Registering a trademark Some advantages of a trademark registration: (1)National protection. (2)Prevent depreciation of goodwill – section 22. (3)Limited incontestability – section 17. (4)Foreign applications. (5)Convention priority claim – section 34. (6)Deters others from adopting a confusing trademark. (7)Easier to enforce. (8) Can be a defence.
31 Registering a trademark Trademark application procedure involves: –conducting a search (optional) –filing trademark application. Section 16 - grounds for filing application: (a)mark used in Canada – s. 16(1). (b)mark made known in Canada – s. 16(1) and s. 5. (c)mark registered and used abroad – s. 16(2). (d)intent to use trademark – s. 16(3).
32 Registering a trademark –examination Examiners duties: (a)search trademarks register for confusing marks. (b)ensure application adheres to provisions of s.12. (c)check formalities - s.30. –publication
33 Registering a trademark –opposition S.38(2) - grounds for opposition: (a)non-compliance with s.30. (b)non-compliance with s.12. (c)applicant is not the person entitled to registration - s. 16. (d) not distinctive - s.2. –allowance. –payment of registration fee. –filing of declaration of use. –registration of mark; renewable every 15 years.
34 Registrable Marks Not all marks are registrable. Section 12(1) sets out the categories of marks that are not registrable: (a)Personal names. (b)Clearly descriptive or deceptively misdescriptive marks. (c)Name in any language of the wares/services. (d)Confusing with a registered trademark. (e)Marks prohibited by s.9 or 10. (f)Denominations prohibited by s.10.1. (g)Geographical indication with respect to wine. (h)Geographical indication with respect to spirits. (i)Olympic & Paralympic Marks
35 Personal Names S.12(1)(a): –A trademark cannot be a word that is primarily merely the name or surname of an individual who is living or has died within the preceding 30 years. Name is a word or combination of words by which a person is regularly known. It is the full name. A given name is not a name. Surname is the family name. Name can be something other than formal, legal names.
36 Personal Names Two-part test: 1.Determine whether the trademark is in fact the name of a living person or someone who died within past 30 years. If not, mark is not contrary to section 12(1)(a). 2.If mark is a name/surname of an individual, is it primarily merely a name/surname?
37 Personal Names A coined trademark that is also an uncommon name may not be primarily merely a name. Standard Oil v. Registrar (FIOR)
38 Personal Names COLES Registrar of Trademarks v. Coles Book Stores Coles is a surname. Dictionary meaning is cabbage but rarely used. COLES is not merely a surname but it is primarily merely a surname, therefore not registrable.
39 Personal Names ELDERS Elders Beverages v. Registrar of Trademarks Applicant applied for trademark ELDERS for non- alcoholic beverages. Elder is a surname but also a dictionary word with several different meanings. Dictionary meanings of the word were significant. Held, not merely a surname and not primarily merely a surname. Possessive case and plural of names are not exempt from s.12(1)(a).
40 Descriptive Marks S.12(1)(b): –trademark cannot be a word that is...whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of the wares or services in association with which it is used or proposed to be used or the conditions of or the persons employed in their production or of their place of origin.
41 Policy reasons for S. 12(1)(b) Prevent appropriation by one trader of descriptive words that should be available for all competitors to use. General Motors v. Bellows For deceptively misdescriptive trademarks, protect consumers from deception.
42 Clearly Descriptive Clearly means easy to understand, self-evident or plain. Drackett v. American Home Products Helps to distinguish between suggestive marks and descriptive ones. Examples of suggestive marks: –TAVERN for alcoholic brewed beverages –WATERWOOL for bathing suits
43 Descriptive of Quality EXTRA PREMIUM PERFECTION SUPER SUPREME RIGHT (Imperial Tobacco v. Benson & Hedges)
44 Deceptively Misdescriptive SHAMMI for transparent polyethylene gloves. Deputy Attorney-General v. Biggs Laboratories
45 Descriptiveness and Corrupted Spellings Corrupted spellings are caught by the …or sounded… part of the test in S. 12(1)(b). KOLD for ice cream CHEEZ for cheese STA-ZON and SHUR-ON for eyeglass frames
46 The Test of Descriptiveness Based on immediate first impression. Applies to an intrinsic characteristic or quality. (Provenzano v. Registrar: KOOL ONE for beer) Includes description of function, purpose or effect. (Thomson Research v. Registrar ULTRA FRESH for bacteriostats) Applies to the beneficiary of the services (Ontario Teachers Pension Plan: TEACHERS for a pension plan for teachers)
47 Geographically Misdescriptive BRIGHTS FRENCH HOUSE for French wines or wines blended with French wines (T.G.Bright v. Institute National)
48 Geographically Descriptive Two kinds of geographical place names can be held descriptive: 1. Place having reputation as a source of the goods 2. Place recognized as a likely source for a wide variety of goods. Atlantic Promotions. But see Vina Leyda.
49 Name of the Goods or Services Section 12(1)(c) applies to the name in any language. Marks that are clearly descriptive in languages other than English or French are not barred.
50 Confusing Trademarks Section 6: The use of a trademark causes confusion with another trademark if the use of both trademarks in the same area is likely to lead to the inference that the wares/services associated with the trademarks are made/performed by the same person.
51 Confusing Trademarks The surrounding circumstances under section 6(5) include: (a) Inherent distinctiveness and extent to which they have become known. (b) Length of time in use. (c) Nature of wares, services, business. (d) Nature of the trade. (e) Degree of resemblance between marks in appearance, sound or idea suggested.
52 Confusing Trademarks Principles: –1. Distinctive marks get broader protection than descriptive ones. –2. Average purchaser test. Imperfect recollection –3. Test of first impression. –4. Look to entirety of marks. Do not dissect. –5. Confusion is to be inferred: actual conflicting use in same area is not required (Masterpiece)
53 Confusing Trademarks Mattel, Inc. v. 3894207 Canada Inc. BARBIE for toys versus BARBIES for restaurant services. Relevance of the fame of a mark. Relevance of vast difference in goods or services. Supreme Courts view of Pink Panther decision. Other surrounding circumstances: wares vs. services; public recognition of wide licensing of famous marks; absence of evidence of actual confusion. Irrelevance of mens rea. Survey evidence in assessing confusion.
54 Confusing Trademarks Masterpiece Inc. v. Alavida Lifestyles Inc. MASTERPIECE LIVING vs. MASTERPIECE THE ART OF LIVING et al. for retirement residence services. Relevance of geographic locations marks are used. Test and approach for confusion analysis. Importance and approach for testing for resemblance Considering mark as applied for vs. as used. Dominant or striking aspects of marks. Relevance of nature and costs of wares/services. Survey evidence.
55 Confusing Trademarks Trademark elements that are descriptive or in common use get little protection: DANDRESS vs. RESDAN for dandruff treatment: Ultravite Laboratories.
56 Official and Prohibited Marks Section 12 (1)(e): …a mark of which the adoption is prohibited by section 9 or 10.
57 Official and Prohibited Marks Categories of prohibited marks: –1. Government or royal crests, certain flags, words like United Nations, RCMP, Red Cross symbol, armed forces marks, words/symbols indicating government approval. –2. Marks of universities: s. 9(1)(n)(ii). –3. Official marks of public authorities: s.9(1)(n)(iii).
58 Official and Prohibited Marks 4. Scandalous, obscene or immoral words or devices: s. 9(1)(j). 5. Any matter falsely suggesting a connection with a living individual: s.9(1)(k); 6. Portrait, signature of an individual who is living or has died within the preceding 30 years: s.9(1)(l).
59 Official and Prohibited Marks 1. Marks where the prohibition against adoption is contingent on the registrar giving public notice of adoption: –S.9(1)(e): Arms, crests, flags adopted by Canada, a province, or municipal corporation. –S.9(1)(i): Civic arms and crests of Union countries. –S.9(1)(i.1): Official signs or hallmarks of Union countries. –S.9(1)(n): Marks of armed forces, universities, public authorities. –S.9(1)(n.1): Armorial bearings.
60 Official and Prohibited Marks 2. The remaining subsections of S. 9 are absolute prohibitions against adoption and do not require public notice.
61 University Marks Section 9(1)(n)(ii) University of British Columbia
62 Public Authority Marks ICBC v. Registrar: Does an official mark require any special attributes? Can the use of the official mark be for commercial purposes? Does the registrar have the discretion to refuse a request to publish the mark? Does an official mark have to comply with Section 12?
63 Public Authority Marks – s. 9(1)(n)(iii) What is a public authority? - –Ontario Assn. of Architects; –Canadian Jewish Congress v. Chosen People Ministries. –Canada Post Corporation v. United States Postal Service Test of confusion in Section 9(1): …so nearly resembling…. No restriction to particular goods or services.
64 Public Authority Marks What happens when official marks conflict with ordinary trademarks? - Canadian Olympic Association v. Allied.
65 Prohibited Marks – S. 10 Section 10 requirements: –Ordinary and bona fide commercial usage –Recognized in Canada as designating kind, quality, quantity, destination, value, place of origin or date of production. Examples of s. 10 mark: STERLING for silver. HABANA for cigars.
66 Protected Geographical Indications Defined in section 2: a geographical indication is an indication that identifies a wine or spirit as originating in a territory, where a quality, reputation or other characteristic of the wine/spirit is attributable to its geographical origin. Sections 12(1)(g) and (h).
67 Protected Geographical Indications Sections 12(1)(g) and (h) prohibit the registration of a trademark that is a protected geographical indication for use with a wine/spirit not originating in the territory indicated by the geographical indication. Examples: Niagara Peninsula, Okanagan Valley, Vancouver Island, Fraser Valley, British Columbia, BC Gulf Islands.
68 Distinguishing Guises Distinguishing guise is defined in Section 2 as meaning (a) a shaping of wares or their containers, or (b) a mode of wrapping or packaging wares the appearance of which is used by a person for the purpose of distinguishing his wares/services from those of others.
70 Distinguishing Guises TMA488661 of Nestle (previously Perrier) for sparkling water. <>
71 Distinguishing Guises TMA337,785 of Kraft Foods for chocolate.
72 Distinguishing Guises Requirements for registering a distinguishing guise: –Used in Canada so as to have become distinctive by the filing date. Territorial restriction possible: s. 32. –Not likely to unreasonably limit the development of any art or industry. –Not interfere with the use of a utilitarian feature.
73 Distinguishing Guises Unreasonably limit the development of an art or industry: Dominion Lock v. Schlage
74 Distinguishing Guises Interference with the use of a utilitarian feature: –Remington v. Phillips
75 Trade Dress Eli Lilly v. Novopharm Get-up of Prozac capsules, not registered as a distinguishing guise. Requirement to show get-up is distinctive of a trade source of the product as opposed to being associated with the medicine and its therapeutic effect.
76 Certification Marks Purpose: distinguish goods or services of a specified standard from goods or services that do not meet the standard. Purpose is not to distinguish one traders goods or services from those of others. Examples: VQA of Vintners Quality Alliance. UL of Underwriters Laboratories
77 Certification Marks Features of certification marks: –Adoption and registration only by a person who is not engaged in producing the goods/services. –Use is by licensees. –Owner is not obliged to license everyone who meets the standard. –Mark must be in use at date of application. Owner of certification mark stands in the place of the actual user for purposes of opposing registration or use of a confusing mark. Wool Bureau v. Queenswear.
78 Certification Marks Geographically descriptive certification marks (section 25): –Administrative authority or commercial association in an area can register a certification mark descriptive of the place of origin of the goods/services. –Owner must permit use of mark for all goods/services produced in the area.
79 Non-Use of a Trademark (a) Section 45 –Removes deadwood from the register. –No expungement on technical grounds. –Owner must show use within last three years. –Use must be in the normal course of trade. –Three-year grace period after date of registration. –Must show use for each good/service. –Non-use may be excused by special circumstances.
80 Non-Use of a Trademark Section 45(3): Non-use excused by special circumstances. John Labatt.v Cotton Club.
81 Non-Use of a Trademark (b) Expungement for abandonment –section 18: registration is invalid if trademark has been abandoned. –Non-use and an intention to abandon are required to create abandonment. Philip Morris v. Imperial Tobacco. –section 57: Federal Court has exclusive jurisdiction in expungement proceedings.
82 Non-Use of a Trademark (c) Use of a mark varying from the registration: –CII Honeywell Bull BULL CII HONEYWELL BULL -Promofil v. Munsingwear
83 Licensing Typical licensing situations: –1. Licensing for franchise or dealership. –2. Licensing for merchandising. –3. Multinational company licenses national subsidiary. –4. Patent licence includes trademark license.
84 Licensing Section 50: –Use of trademark by licensee, where owner has control over the character or quality of the goods/services, has the same effect as use by the owner. –Includes use of mark as part of trade name.
85 Licensing –…Section 50: –Extra-territorial effect. –Presumption of proper licensing if public notice of license is given.
86 Licensing Section 50 has retroactive effect, whereby a licence cures past, unlicensed use of a trademark. Eli Lilly v. Novopharm.
87 Assignment Trademarks are assignable with or without the goodwill of the business. Trademarks cannot be divided territorially within Canada by assignment. Assignments can be registered in the Trademarks Office: s. 48(3).
88 Assignment Distinctiveness can be lost by assignment. The consumers must be informed of the change in ownership of the mark. Wilkinson Sword v. Juda
89 Trademark Infringement Infringement under Sections 19 and 20 1. Identical trademark situation: –Registration of a trademark for goods or services gives the trademark owner the exclusive right to the use throughout Canada of the trademark in respect of those goods or services: Section 19.
90 Trademark Infringement – S. 19 The marks and the goods/services must be identical for s. 19 to apply. Mido G. Scharen v. Turcotte; Bonus Foods v. Essex Packers
91 Trademark Infringement – S. 19 …unless shown to be invalid… –Grounds of invalidity are in section 18: (a) Not registrable: s.12. (b) not distinctive: s.2. (c) abandoned. (d) applicant not entitled to register: s.16.
92 Trademark Infringement – S. 19 Subject to sections 21, 32 and 67… –s. 21: concurrent use of confusing marks. –s. 32: territorially-restricted marks. –s. 67: Newfoundland marks.
93 Trademark Infringement – S. 20 2. Confusing trademark situation –Right of the owner of a registered mark is infringed by a person who sells, distributes or advertises wares or services in association with a confusing trademark or trade name: Section 20
94 Trademark Infringement – S. 20 Exceptions in section 20: –(a) bona fide use of personal name as a trade name; –(b) bona fide use, other than as a trademark, (i) of the geographical name of his place of business or (ii) of any accurate description of the character or quality of his wares of services, in such a manner as is not likely to have the effect of depreciating the value of the goodwill
95 Trademark Infringement Grey Marketing: Sale of genuine goods by a person who is not authorized by the trademark owner to distribute them in Canada. 1.Plaintiff is a licensee of the foreign trademark owner. Smith & Nephew v. Glen Oak. 2.Plaintiff is a subsidiary of the foreign trademark owner. Heinz.
96 Depreciation of Goodwill Goodwill is the ability of a trademark to induce customers to continue to buy the goods or services identified by the mark. Depreciation of goodwill occurs when customers habit of buying the brand they bought before is weakened.
97 Depreciation of Goodwill Section 22(1): No person shall use a trade-mark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto.
98 Depreciation of Goodwill Veuve Clicquot v. Boutiques Cliquot VEUVE CLICQUOT for champagne versus CLIQUOT for retail womens clothing stores. Infringement action and s. 22 claim and action to expunge the defendants registrations. No requirement to show likelihood of confusion in s. 22 claim. Plaintiffs mark does not need to be famous, but requires significant goodwill. Depreciation can arise from loss of distinctiveness as well as disparagement. Requirement to show a connection in the consumers mind between the two marks.
99 Depreciation of goodwill Depreciation of goodwill by using a registered trademark in a parody or satire: Source Perrier v. Fira-Less Marketing. Freedom of expression is not a defence to infringement under section 22.
100 Passing Off Three requirements to establish the tort: –1. Goodwill: Plaintiff must have a protectible reputation in its trademark at the date the defendant starts using its impugned trademark.
101 Passing Off 2. Misrepresentation causing deception of public: –Use of confusing trademark amounts to a misrepresentation that the plaintiff is the source of the goods or services, or that the defendant has a business association with, license from or other connection with the plaintiff. –Fraudulent intent is not required.
102 Passing Off 3. Damage: –Examples: lost sales, damage to goodwill in the mark, reputation, loss of control over the use of the mark.
103 Passing Off The expanded form of the tort: –A group of plaintiffs shares the goodwill in a name, e.g. the producers of champagne in the French district of Champagne. –The name distinguishes products of a particular composition or made in a particular territory.
104 Passing Off …Expanded form of the tort: Erven Warnink v. J. Townsend. –ADVOCAAT – Egg and spirit drink conforming to an identifiable recipe. No geographical restriction. –CHAMPAGNE – wines produced by a particular method in a specific region of France. –SHERRY – wines made by a particular method in a specific region of Spain. –SCOTCH WHISKEY – blended whiskeys that have been distilled in Scotland.
105 Statutory Passing Off under Section 7 Section 7(b) –… direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another.
106 Statutory Passing Off under Section 7 Section 7(c) –…pass off other wares or services as and for those ordered or requested –This is interpreted as a prohibition against the substitution of other goods/services for those that were ordered.