Does the “First Sale Doctrine” Protect Me if I Create Saleable Items Using Existing Products?

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Selling of products that are originally one or more different items is difficult based on certain factors that could negatively affect the individual or business attempting the sale. There are trademark laws in place that protect the intellectual property such as designs or processes in trade secrets which may alter or change what may occur with these sales.

Sometimes, the sale of products becomes complicated based on trademark and trade secret protections. If a person has one product such as a design created by another or a company and uses this on another product he or she made, it could constitute as a different product. However, lawyers may become part of this process if the company or individual that manufactured or created the design wants the party to cease and desist with the action. There are possible considerations through the First Sale Doctrine. However, the issues may become confusing without the assistance of an expert in these matters.

First Sale Doctrine Explained

The first sale of a product provides the seller with certain rights that protect his or her sale. However, these safeties usually only protect the individual through copyright materials. Additionally, multiple copies or reproductions are not part of these covered safeguards. The first sale will ensure that someone that has purchased a book or other copyright product is safe from violations. However, he or she may not recreate the copyright source and sell these items. As applied to trademarked products, the seller may incur violations of trademark protections when combining products with another’s logo or design. Express permission of the trademark owner is necessary in these sales.

Permission to Sell

When a previously created design is part of product sales, it is important to acquire the permission of the trademark holder. Even if the design changes, it is usually similar enough that a court would judge the action invalid for sales. Thus, the individual should contact the trademark company for consent. The owner of the trademark or design may provide permission for sales through an agreement. This may depend on how connected the product is and how well the sales progress. When the owner of the second business wants to branch out, it is with the express permission of the trademark company or legal complications may arise.

The primary concern with selling items that possess the trademark, process or design is that clients and consumers may become confused about the direction of the company or the objectives the owner has. With an agreement to hold to specific terms, the trademark may not sustain harm or cause confusion with the public. This may ensure that revenue does not waiver and the other party may sell the product without further interference. However, without permission to sell the item that contains a design or logo, the sales may lead to a cease and desist order from the company. Lawyers and the courts become involved in these matters.

Protected Products

While the First Sale Doctrine may not protect the creator selling products, there are certain situations that may apply and ensure safety of sales. If a design, trademark or process altered through recreation has enough difference in the newly manufactured item, it is possible that this will protect the individual from legal recourse. If the other company does send a cease and desist letter, it may become important to let a judge decide how similar the new design is after the changes. Hiring a lawyer is absolutely essential to ensure following of all legal processes. At the point the judge determines the design is not similar enough, the individual has the ability to sell the product. However, if he or she makes further changes, the other company may attempt to start the lawsuit from the beginning based on these modifications.

Legal Assistance with Product Sales

Business processes are tricky when the individual is not creating a brand-new item. Any combination of other’s items into a new product may incur the wrath of one or more companies. Then, legal support in these matters is crucial for success of sales and protections from the business world.

Legal help through a lawyer may carry through to a judge. This is beneficial in certain situations so that the judgement applied stops a company from pursuing legal action further. However, if the judge does determine the product is too similar with design or logo, the individual must stop all production. Legal help may assist with all other processes to include what paperwork to complete.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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