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First Sale Doctrine
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.
5 replies
Seller_rI7BZIczK8iAC
I did just read the first sentence of your thread. This discussion has been going on many times here in the forum. I suggest you search previous threads:
Go on top and click “Discussions”, put the filters on the left on «Recommended” and “Past year” (or longer), then write this key word in the search bar on top and read the threads.
I don't know if you will find volounteers contributing again to this discussion.
Seller_Qbd0RsfZFEZBY
Online marketplaces that primarily retail brand new product are not the venue for a secondary market as it is unnessisarily vulnerable to bad actors to abuse that marketplace and mislead customers with fraud.
Your entire post omitted the fact that the first sale docterine applies only to copywritten work. It does not apply to other IP like patents, trade or design marks. Think music and paintings, not Nintendo....
This is inaccurate. The new owner cannot mislead a buyer by stating the product is new, that is fraud.
The new owner cannot use the brands IP for thier profit without authorization, that is theft.
The product must be represented as used.
If the product has a warranty or guarantee then the product is now "materially different" as that only applies to the original purchaser. This makes the item "counterfiet" if sold as "new"
Seller_kIukTwdhvntAp
As the others have noted, this has been argued, discussed, and cussed on here too many times to count.
In addition, you are painting an issue that is very narrow with an extremely and not applicable broad brush.
It ONLY covers publication types of items.
ALL of the above is irrelevant in any case.
It's simple on here --
AMAZON HOUSE, AMAZON RULES.
They have NEVER accepted it so get over it already.
Seller_nRFmxiQg4EGrw
You failed to mention that the "new owner" wanting to sell the item must sell it as "Used", as it is no longer "New".
As for having a "rule listed", there are sourcing guidelines published. The fact that they may not use the term "First Sale Doctrine" doesn't mean that the rules don't exist. Despite your rant, Amazon has been pretty clear that inventory must be sourced properly, and that selling Used as New is not acceptable.
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