All Questions in Trademark Disputes >> Violating Intellectual Property Rights In Advertising Or Reselling Products

Violating Intellectual Property Rights In Advertising Or Reselling Products

Posted by . updated on 11/11/2009
If you are re-selling a product in the US that you bought from company X in the US and take a picture of that product showing which of course shows the products logo can that be a violation of IP rights?

Can the ad itself be a violation of IP rights just because company X doesnt want you selling their product for any reason at all?

Or do we have some type of fair use rights to take pictures of the manufactures container/box and its product to advertise and resell a product?

I give credit to their registered name using a circle R symbol in teh ad, I explain that company X is not associated with this ad and I even go as far as to digitally delete their name and logo from the pictures after they started complaining. Still asking me to take down the ads.

I think it started when they saw that we were simply doing what other companies already do. Take their cable box recording DVR, upgrading the hard drive and selling it. Its been done for well over 5 to 10 years now by several companies - and by a large majority of people as well for personal use.

I think our competitor might have gotten mad at reduces sales, contacted company X and now they are swinging a big stick.

What possible rights do I have given this scenario? I need to delve into what is common paths in these problems and what is their absolute rights that I have no say so on.

They have not responding to my request for details yet and its been well over 10 days. For all I know they don't have to say anything or cooperate if they choose not to.

The ad system that I use shuts down my ads right on the click of company Xs button push. But If I want to push further then they will require comapny X to get a court order stopping me adn if they do not they will relist my ads. Not sure if that is the route I want to take before I figure all of this out. Once they get that I'm guessing I can no longer sell or advertise anything with that product whatsoever and at this point not even sure how to defend myself with an item like that.
Answers (1)
 
mrsam
Again, I have stopped all selling of the actual items I was asked to stop and will only allow an in person attorney with a opinion letter to tell me I can start selling again. In the meantime, my reearch has lead me to this point. Also, for more context the items are purchased at retail prices without contracts.

Taking an electronic cable box, removing the hard drive and replacing it with a larger hard drive would not be considered a "material difference"? All the parts and the unit itself are being used as was designed for and in the same manner as was expected them to be used for. Given that there is no material difference so First Sale doctrine holds with respect to this. Contextual problem?

First Sale Doctrine provides that no authorization is needed to sell the item. So, claiming the selling of "unauthorized" goods is baseless. Contextual problem?

Taking pictures of the product that is for sale without altering the trademarks/logos is not trademark or copyright infringment. Contextual problem?

Lanham Act, which provides that fair use is established where "the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, which is descriptive of and used fairly and in good faith only to describe the goods or services. Regardless whether the protected mark is descriptive, suggestive, arbitrary, or fanciful as used in connection with the product or service covered by the mark, the public's right to use descriptive words or images in good faith in their ordinary descriptive sense must prevail over the exclusivity claims of the trademark owner. This tells me I can use the company name, product name and brand name as a descriptive in my ads regardless of what company x would have me believe. Contextual problem?

So far I have the following:

- I can modify the item.
- I do not have to be authorized by company x to sell the item.
- I can take pictures of the item for the ad.
- I can use their company name, product name, brand name and even the equipment facts as defined and retyped by me in my ad.
- In the ad, making sure that consumer udnerstands that I am not company x and that the mods are not performed by company x.

My conclusion is that I am legally able to buy it, modify it, advertise it and sell it.

What are my specific obstacles that I am missing?

I can list only 1 so far and I still have no idea. Would a Patent of item x stop me? Doesnt all electronic items have patents and could a cable box, that has a hard drive, have such a patent that keeps me from swapping hard drives and reselling them? The chips probably have patents and maybe not even from company x for that matter. The hard drive does but company x does not own that patent. Can someone explain this part with examples so I can wrap my mind around it?

Thanks
 

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