Okay I know this topic is going to get some of you fired up but lets have a rational discussion on the topic as sellers of products. But first, I think we can all agree that we need a strong and healthy secondary market for products and goods. The secondary market is what keeps all of the brands in check with their prices along with competition from their competitors. If the secondary market were wiped out completely there would be a lot monopolies in the market.
Now to the doctrine. There is case law and Supreme Court ruling that supports the first sale doctrine, they admit that needs some updating to fit with the current times but there is no doubt that the law exists.
So as many of us know. I can buy a widget from a company/person who has trade marked, have some IP restrictions on it, whatever. Once that widget has been sold to another individual then the original owner of that product gives up their rights on that product as the widget is now owned by someone else. The new owner can do whatever they want with said widget. If the new owner of the widget wants to sell well he has some things that he must follow per the law.
1) The product must be purchased legally. Purchase the product from an unauthorized “distributor” then you have no protections and action can be taken against you.
2) The product cannot be altered in anyway. The trademark owner has every right to inspect/test the product you selling with their name on it. If it is found to be altered in anyway they have the right has the brand owner to take action because you violated the protections afforded to the brand.
3) The new owner selling the product must not claim any affiliation with Brand. He can not say he representing the brand, works for the brand, etc. He is simply selling the product. There can be no confusion on who actually owns the brand. Violate this rule then you will have action taken against you.
Now does Amazon have the right to say what you can and can not sell? Absolutely, their business, their rules, as users of their platform we agree to the rules so we follow them. Obviously they should probably have a rule listed somewhere stating this fact. No what if there is no direct rule but Amazon is saying they are doing it to protect the brand, or the want a letter of authorization from the brand, NOPE that is a potential violation of the First Doctrine Sale, withholding the right of that individual to sell a product that they legally own.
In Kirtsaeng v. Wiley the Supreme Court gave even more validity to the law by extending this right to copywriter made abroad and imported into the United States. It is my opinion that this decision laid the foundation for future claims that appear before the court and how it will rule.
Outside of Amazon think of all of the brand items that you’ve sold in your lifetime. Did you own the copy, trademark or IP on any of those items? Did anyone come knocking on your demanding restitution for making money of a “protected” brand?
What are your thoughts? I would love to read the thoughts from the Amazon folks on this topic.
