Intellectual Property Law

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Good morning,I'm contacting you regarding...
Good morning,I'm contacting you regarding an intellectual property law question which could also effect trademark law. To understand the complete scenario, please let me explain as follows.
I have currently the opportunity to buy overstock merchandise (brand shoes) in the European Union (Germany) at very decent cost. The products are 100% authentic and have been released by the manufacturers for sale in the European Union. The company I would buy the overstock from receives those products from official and legit retailers comparable to the big US ones starting with an M or an S.
The products would be shipped in mixed lots and would include several well known designer brands as well as regular brands. Again, those products are 100% authentic and have been sold in the European Union and the idea would be to resell those in the US.
After I tried to do some research on my own, I decided to ask a specialist to answer my following questions:1. According to current law, the above mentioned scenario would be considered a parallel import, also known as grey import which is generally not prohibited correct?2. Would the product be free for resale in the United States, even if the trademark owner did not give me the approval to do so considering that the first sale of this product has happened in the European Union with the approval of the trademark owner?3. Does the product need specific labeling to be legally resellable in the US, stating its European origin and if so, would this be necessary for all brands?3.1 If 3 is the case, how can I find out which products need specific labeling and to what what point in the supply chain? Arrival at customs or arrival at final customer?4. Will there be anything else to consider in this scenario to make sure everything is in alignment with US law and can not cause any trouble down the road?Thank you very much for your help in this.
Submitted: 5 months ago.Category: Intellectual Property Law
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Answered in 3 hours by:
11/13/2017
IP Lawyer: socrateaser, Lawyer replied 5 months ago
socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 39,763
Experience: Retired
Verified

Hello...answers by the numbers:

1. Correct.

2. Yes, provided that your use of the manufacturer's trademark does not create any confusion in the mind of an ordinary consumer as to the source or affilation of the product. There is case out of the U.S. District Court in Florida that discusses the trademark issue at length: SWATCH SA v. New City, Inc., 454 F. Supp. 2d 1245 (S.D. Fla. 2006). I suggest you review it for a comprehensive explanation of what you can and cannot do.

3. Generally, a product that is not marked "Made in [country of origin]" could be construed as confusing an ordinary consumer, which would violate trademark law. It may also violate U.S. Customs tariff regulations. So, the safest practice is to correctly labor the products with the country of origin.

4. Since I believe all products should be appropriately labeled regardless of source, this issue is inapplicable.

5. Some products may be subject to license, rather than sale. A licensed product is not subject to the "exhaustion" or "first sale" doctrines that protect distributors from potential patent, trademark and copyright issues, after the first sale of a product occurs. I don't see that shoes would have this sort of problem (whereas computer software absolutely would). If it were me, I would send a test shipment through U.S customs and see if your product is seized. I have had many clients who engage in transactions such as you describe, and the manufacturer finds a way to stop the shipment in customs -- with the result that the client is unable to afford the legal battle to obtain release of the product(s).

You could also simply choose to use an import-export broker to ship the products for you. But, I realize you're trying to eliminate costs as much as possible. Which is why I'm suggesting a test shipment.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Ask Your Own Intellectual Property Law Question
IP Lawyer: socrateaser, Lawyer replied 5 months ago

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

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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).

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