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Can a manufacturer/company do this?
 

Recently put up an item for sale. Just one to be exact. Got the listing taken down and was given an email to contact the manufacturer/owner. Emailed them asking why it was taken down when i purchased it from their website and have a receipt for proof.

Their response was we do not allow our items to be sold on eb or anywhere else. I even posted the item on craigslist and it was taken down... I don't know how the laws play out on this one so i'm just curious if they are allowed to do this. My first thought was that if i purchase it from their website and the item is guaranteed genuine since it is purchased from the manufacturer itself i take ownership of that item and should be able to sell it anywhere i wish to do so. This doesn't seem to violate any trademarks or copyrights in my opinion.

Anyone have any experience or knowledge on this topic?

Re: Can a manufacturer/company do this?
 

First Sale Doctrine .


Check it out.

Grey area and cause of issues for (amateur) sellers.

:ranger:

Re: Can a manufacturer/company do this?
 

The First Sale Doctrine SHOULD apply. Unfortunately the DMCA gives copyright and trademark owners virtually all of the power in these situations. They can send a takedown notice. If it is for an alleged copyright violation, you can contest it. If it is for a trademark violation, they have the final word and you have no recourse.

It is not what was intended, but that is the way it works in practice.

Re: Can a manufacturer/company do this?
 

Keep in mind, ebay spent long years in litigation with Louis Vuitton over their items. Litigation overflowed to other high end companies.

LVMH, eBay end suits, pledge co-operation to fight counterfeiting - Fortune

Older news in the above but influences the current stand.

:smash:

Re: Can a manufacturer/company do this?
 

The DMCA was supposed to protect copyright owners and trademark owners from counterfeiting and copyright infringement. What happened is, the lawyers quickly found they could use it as a weapon against people trying to sell their items without their blessing.

Outside of cyberspace, the first sale doctrine applies. It means that you can buy a book, movie or any other item and dispose of it as you see fit, as long as it is a legitimately obtained item. If not for that, publishers could sue libraries for lending their books, movie studios could have put video stores out of business, and no used items that were copyrighted or trademarked could ever be resold.

People are amazed that these rights do not automatically transfer to cyberspace. But the law was sloppily written (or maybe it was written that way by lobbyists, who knows?) and quickly gave all of the power to the copyright and trademark owners.

If you get a takedown notice related to copyright, you can file a counter-notice. At that point, the copyright holder has 10 days to file a lawsuit against you, or whatever website took down your item can legally place it back on their site. That does not mean they MUST do so, it only means that they CAN. The odd thing is, there is no counter-notice procedure for trademark violations.

Not that it really matters, because companies like Amazon and eBay ALWAYS side with the copyright/trademark owners. So the bottom line is, you cannot sell if they do not want you to sell it. Most companies do not take too much advantage of this, but there are few that are absolutely HORRIBLE about it. Burberry comes to mind.

Re: Can a manufacturer/company do this?
 

Thanks for the posts guys. They were very helpful and i learned a lot of extra things i didn't know as of yet which kind of made me angry lol.

So the first sale doctrine only applies to items being purchased outside of the internet even if it is directly from the manufacturers website who holds these copyrights/trademarks?

By the way the item purchased was not software or any digital item. It was a physical item which i thought the first sale doctrine applies even if its purchased online.

Re: Can a manufacturer/company do this?
 

I'm by no means an expert, but I'm pretty sure the First Sale Doctrine applies period, no matter where it's sold.

That said, it covers your ass LEGALLY SPEAKING, from lawsuits and such. That does NOT mean that you can sell it wherever you want. Since eBay doesn't want to fight over some alleged violation, they takedown your listing REGARDLESS of whether or not you're in the right.

Now, if said company tried to SUE you over your attempted sale, you WOULD be able to defend yourself via the First Sale Doctrine, Copyright, trademark, dancing monkey, whatever claim they make---doesn't matter.

Although I'm 99.9% sure I'm right, please correct me if I'm mistaken!

Re: Can a manufacturer/company do this?
 

First sale should cover you once, however if you sell the item repeatedly or have multiples..

Re: Can a manufacturer/company do this?
 

That was confusing me a little bit in the beginning. But after reading online about it a little bit, i don't think it is only for the first sale. If it were then i would only be able to buy one item from a store and be able to sell that one item only or dispose of it or rent it or whatever i choose to do so. Then if i went again and purchased the same item again a week later that would be i cannot do anything with it even if it was genuine and sold by the retailer who is allowed to sell it.

I may be wrong but this is the way i understood it.

Re: Can a manufacturer/company do this?
 

I was thinking that too but jeffweico stated that it is not transferred into internet sales so i was just double checking since i couldn't really find an exact answer online. But i think it does since if it wouldn't everything i buy on ebay or anywhere online i wouldn't be able to sell it as far as i recall.

Re: Can a manufacturer/company do this?
 

I BELIEVE Jeff was referring to your "right" to sell it. NOT your legal liability. Again, I'm not an expert, but I'm almost certain you have a bulletproof legal defense in the event of a lawsuit over the sale of legally purchased goods, no matter WHERE you sell them.

Being unable to be sued and being unimpeded in any way are two very different things.

Re: Can a manufacturer/company do this?
 

To make it simple, if a manufacturer does not want people selling stuff on eBay, hires and attorney and get a judge to agree at all in any way, ebay will remove all reported listings without any question.

Your right to sell and your ability are two different things.

Re: Can a manufacturer/company do this?
 

Very well put.

If I'm mistaken, please feel free to speak up. I'm not an attorney.

Re: Can a manufacturer/company do this?
 

We'll they really have no right to tell me where i can sell it or even if i can sell it after a legitimate purchase due to the first sale doctrine is what i understood from reading it. I think ebay is just doing whatever the manufacturer tells them to avoid being sued. After reading the cases GB put above this would make sense even if it is illegal for them to do so since they know the average re-seller isn't going to go through years of litigation and fees to be able to sell that one item.

Basically what that company is doing to me and other re-selling this item is trying to keep their profits up and make sure everyone buys from them only even though it is illegal for them to do so. Sneaky little *******s.

Funny thing is i emailed them from different emails and gotten replies on both emails except the one where i mentioned the first sale doctrine.

Re: Can a manufacturer/company do this?
 

That is exactky what they are doing without breaking any laws. That is what I said. Your legal right and your ability are two totally different things.
My entire business world works this way. Every high dollar item I sell has very specific dealer territories and can not be sold on ebay by manufactures rules and in most cases the internet at all.

The entire purpose is to keep a product viable and profitable. I don't blame them at all for taking all legal actions to do so.

So, a question I have for you is: Is this specific product worth all the effort to fight ebay over? If so, get smart about it. Stop using keywords, farm sales off of ebay onto other places such as your own website or paypal invoice even.

My guess is that it really is not and your time could be better served finding another product or another platform and/or venue to sell said product.

Re: Can a manufacturer/company do this?
 

But how is it legal for them to do this without breaking any laws? I am not violating any copyright or trademark laws. Any laws at that.

Re: Can a manufacturer/company do this?
 

is there a difference between used and new? what is OPs item - new?

this is exactly how my initial accounts went down, namely one account sold a couple of things from a brand, who kept taking it down, with ebay in collusion, I provided evidence of legit and all the while kept relisting (this is before I joined forum) the account went down, along with the couple of others that were also in my details and therefore linked.....I realise now I could have challenged this in court with brand owner and possibly made some money from a ruling even by default, as they had no basis to do this - but I doubt I would have got my accounts back..........

the reason I knew that they knew they had not got a leg to stand on, was that they kept blaming each other, the brand and ebay for the takedown or for not reinstating, I know the brand was lying though.......neither could give me the basis for their argument, they just both said they were trying to help me out and get me back up and running and I should talk to the other one!!!

Re: Can a manufacturer/company do this?
 

What laws makes gives you a right to sell on ebay?

What law are they breaking? If you feel you have damages, then hire an attorney and sue them. 3x damages are pretty easy to get if they violated a basic right or clearly and knowingly broke a law.


I have read a lot of shady threads by you looking for the "loophole" over the past two years. This is simply a SMART manufacturer protecting itself, brand and clients. It is a loophole. They dont want the brand value diluted and are doing what I do, along with hundreds of manufacturers nationwide to protect it.

Basically, they got a legal department that knows what it is doing and how to do it well and cheaply withour litigation or joining ebays vero program. Learn to work around it, sue them or move on :))

Re: Can a manufacturer/company do this?
 

Ebay gives me the right to sell on ebay. And the first doctrine gives me the right to sell that item or do as i wish with it if it. And i don't know if they are breaking any laws that is why i was asking. And it is not that serious for me to sue them just for 1 item that i wanted to sell. I just never heard of any laws that can prevent a consumer who purchases an item legitimately from the company to not be able to sell it after he buys it. In fact the first doctrine says otherwise.

And just me being nosy, what do you manufacture?

Re: Can a manufacturer/company do this?
 

I would file counter notice. I did it before and was able to re-list and was never bothered again. As this was a high demand item I made out great as others kept listings getting removed...

So when someone says "but there are many other same listings that don't get taken down" this maybe one of the reasons.

Re: Can a manufacturer/company do this?
 

Not even worth it for me to file a counter notice. It is just 1 item worth $40 that was just laying around that i thought i would sell to get some money back. I'm not even into the business of re-selling this item. I started this thread just to get some knowledge on this topic to see what was legal and what was not.

Just questioning how is it legal for a manufacturer to restrict someone to re-sell their item when the first sale doctrine says otherwise.


And yankee, what shady threads have you read posted by me "looking" for the loophole over the past 2 years.... lol Not sure what point you were trying to get across there.

Re: Can a manufacturer/company do this?
 

Counter notice depends on the ebay suspension notice these days.

Sellers now have more limited options of appeal.
:tears: