First sale doctrine. I want to take an authorized copywritten item and apply it to something else and then sell it. This new item would not alter the original item in any way and also would be something genXXXXX XXXXXke a keychain, lunchbox or clock.Would this be legal and fall under the first sale doctrine?
Country relating to Question: United States
State (if USA): North Carolina
There is another part to this. The copywritten item will be purchased from a business that buys it wholesale from an authorized dealer.
that depends, what kind of item is it?
does it contain a trademarked logo?
Ok. Here is a brief summary.
I want to purchase authorized high quality stickers of NFL, MLB, NHL, NBA, NCAAand put them on a surface to make a clock. The sticker itself will not be altered. I will put numbers around the sticker and a clock mechanism in the center.
Yes the stickers will have the trademark logo>
yes first sale would apply if you are using original stickers and there would not be a copyright issue. but it is somewhat problematic from a TM law standpoint because of the use of the mark in connection with a product, and the likelihood of consumer confusion
so first sale is not the concern here, it's TM infringement
use of the TM in conjunction with a product would require the permission of the TM owner. now as a practical matter they may never find out or do anything about it, but legally it is problematic and could be considered TM infringement
My understanding is if the TM is not present then it is not an authorized item. The other concern is the business I am considering purchasng these from is not an authorized agent, but they do purchased them from an authorized wholesale company. Does this sound like a concern, as it relates to my use.
what do you mean "if the TM is not present"?
and second, you mean the stickers are not official/authorized? if so then that is a concern, that could be trademark and copyright infrignement
Well I have seen many like stickers that are not authorized items as it appears, so I have focused on sellers of this item that say it is an authorized item and they also show the TM. Is this correct in my thinking?
whether it says "TM" on the sticker does not matter
if the stickers themselves are not officially licensed products then that is a separate problem
from the sound of it there are copyright and TM infringement problems here
OK I understand. I really am only interested in authorized items and will do my research to make sure they are such. So as I have explained my path, does it sound like I would be in compliance?
if the stickers are legit then you are ok with copyright...but still have TM issues by putting the sticker on a product and selling it
OK then that is my answer. I appreciate your time.
as i mentioned, if this is a very small scale operation then it may go unnoticed....but if you are selling a lot of them, or selling online....then its risky
Yes I understand. I am not interested in having problems down the line. I am finished now. Thank You for your time.
best of luck
there are companies out there trolling the web to finding infringming/unauthorized products
Experienced in intellectual property law
Hello Alex Thanks for the follow up. I have done a bit of research since we have spoken and there are numerous cases that would be very similar to what mine would come up to be. Here are a few links to them.http://www.tabberone.com/Trademarks/CourtCases/2ndCircuit/ScarvesByVera_v_AmericanHandbags.shtmlhttp://www.tabberone.com/Trademarks/CourtCases/7thCircuitCOA/LEEvART.shtmlNow I have not decided yet whether to move forward or not, and I also understand just because there has been a ruling does not mean that I will not be put in these same situations, but I can show precedent as it relates to myself. Basically what I want to do is legal and fine, but however to avoid further problems I really need to have a disclaimer that the end product is not an approved item for the TM company.Thanks for your time.Thomas
THIS ANSWER IS LOCKED!You can view this answer by clicking here to Register or Login and paying $3. If you've already paid for this answer, simply Login.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).