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Copyright Infringement and Minimum Advertised Price? Why must I use discount codes or fancy shopping cart tricks if not illegal?

New York, NY |

I am reading contradicting information on advertising products below the MAP? I am told I can be sued for copyright infringement if I advertise to low but I do not see how. I am not in any reseller agreements binding me to their rules and the law seems to be on my side.

According to the law of first sale "an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner"

Also, copyright law states: copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisement.

Am I missing something here?

I am a new ecommerce business and need any edge I can get competiting with the big boys. I feel that I should be able to advertise at prices that will attract the clientelle I am looking for. I have low overhead and can aquire the product at low cost. Coupons and shopping cart loopholes are for already established companies. I need to attract business first.

Attorney Answers 3

  1. You should speak with a local business attorney. You can use Avvo's "find a lawyer" tool to assist you.

    If you found this Answer helpful, please mark it as "Helpful" or "Best Answer". Your feedback is greatly appreciated. PLEASE NOTE: The above statements are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained on this site without first seeking the advice of an attorney.

  2. I would want to understand your situation in much more detail and context before offering any opinion here. It sounds as if you may be conflating two distinct issues, but I am not sure.

    That said, and if I do understand this much, you are free to buy and sell anything you want and at any price so long as it is legal merchandise. The first sale doctrine protects you in this context. But you cannot use the features, logos, images, etc. of brands without permission. If you are in a MAP agreement, you must adhere to that pricing structure. If you are not an authorized distributor or retailer, the brand may come after you for violating copyrights and trademarks assuming you are because that may be the only cause of action they have.

    I strongly suggest that you reach out to a lawyer (perhaps several) in private for a free phone consultation and get some specific insights on your situation. As noted above, I am not certain if I am understanding you correctly here.

    Best regards,
    Natoli-Lapin, LLC

    DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.

  3. "I am new in this business and need any competitive edge I can get against the big boys".

    The competitive edge you need is a sharp lawyer. The big dogs have them and if you want to play with the big dogs you need to have one to, otherwise you need to stay on the porch and let the big dogs have the run of the yard.

    It appears you know just enough trademark law and copyright law to get yourself in a melluvahess.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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