Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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The answer to this simple question is not simple and not straight forward (as many times in the law). So let give you an overview of the relevant legal issues here and you'll be able to see for yourself
The Supreme court has recently expanded this right to lawfully purchased products from outside the US.
Under the first-sale doctrine if you lawfully purchase a product in the US you have the right to do what you wish with that product including re-sellling
Companies protect their products through patents and trademarks. A patent or a design trademark or trade dress mark protect products in the market place from unlawful imitation and confusion. Specifically trademarks protect consumers from confusion in the market place by similar products.
I understand that I can resell it, but can I take a "ABC" brand vacuum cleaner, change some parts in it, change packaging and labeling, and sell it as my own.
please bear with me as I lay out the foundation
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Under the Lanham Act, the concept of “Reverse Passing Off” is derived from the statutory language in § 43(a) prohibiting a “false designation of origin” that is likely to cause consumer confusion and generally happens when one company puts out another company’s product as its own
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ok, sounds good
The Lanham act discusses origin of the product as a possible cause of consumer confusion (origin is not where the product came from but who the product came from i.e. who manufactured the product). Though a recent Supreme Court case narrowed the scope of “reverse passing off” to include actions of complete appropriation of another’s products, stripping off the identifying marks, and then selling the product as one’s own, the risk remains in that the scope of what is permitted or not it evaluated on a case by case basis
In conclusion, in theory you can take an existing product improve it, re-brand it and resell it provided the new product does not create confusion in consumers and of course provided the new product also complies with patent, copyrights and other rights that the original manufacturer has. Confusion can be attributed to many elements such as looks (the two products look the same), features, peripheral equipment that both share etc.
So your goal is to create a new product that is recognized in the mind of consumers as being a completely different product.
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