Is it illegal to import a manufactured product from a foreign country (asia) and repackage it as my own?

Basically import Product (A) from a foreign country and I completely repackage it with my own bags and brands without any identifiable indications of the other brand to produce Product (B) as my own with any modifications to it? 2nd question - Same as above but I combined a ratio of Company (A) to Company (B) to make My own company's product, is that illegal? Thank you

Buffalo, NY -

Attorney Answers (5)

Maurice N Ross

Maurice N Ross

Intellectual Property Law Attorney - New York, NY
Answered

There may be a way to meet your objectives legally, but this will require you to retain legal counsel (intellectual property, licensing counsel and regulatory counsel) to work with you meet your objectives. First, it is strongly advisable to have a written agreement with the manufacturers of the products that you import and relabel or combine with other products pursuant to which the manufacturer gives you express written permission to do so. Without such a license from the original manufacturer, you could be accused of engaging in "reverse passing offer" (which is a violation of trademark and potentially trade dress law). The reason this is a potential legal problem is that you could be accused of misleading or confusing consumers as to the true source of the products. The only way to avoid this problem is to negotiate a license with the original manufacturer---but negotiating such licenses can be complex and time-consuming. Certainly you would need legal counsel to handle this negotiation for you. Such license agreements are ordinarily lengthy and complex---a one page legal zoom document will not suffice.

Second, depending on the products involved, laws and regulations at the Federal and State level may require you to identify the manufacturer of the product. In many circumstances, consumers have the legal right to know the identity of the manufacturer--so that they can pursue claims against such manufacturer in the event that the product is unsafe or defective. Thus, even if you are permitted to "rebrand" the product, you still may be legally obligated to disclose the identity of the actual manufacturer.

Third, the "repackaged" or modified products that you create could violate intellectual property rights belonging to third parties, including patents and copyrights. Before embarking on this venture, it would be advisable for you to retain legal counsel to provide you with a patent and copyright clearance analysis. Further, you also need legal counsel to perform a trademark clearance with regard to the brand that you propose to use.

Fourth, you need to work regulatory counsel to assure compliance with labeling and safety regulations at the Federal and state levels (such as the requirement that the label identify the country of origin of products and, in many cases, the manufacturer, product ingredients, safety profile, and other such information). Depending on the nature of the products involved, there may be many applicable safety and health regulations at the state level which are more stringent than the requirements of the federal government. Some states require products in certain categories to have been tested for safety (such as whether they are fireproof, waterproof, or toxic). Regulations may also cover the manner in which the products are produced or packaged. Further, there are sometimes conflicting regulations from one state to another, and these conflicts must be identified and resolved.

In short, you are proposing to engage in a rather complex business. While it may be possible to meet your objectives, this will require significant investment of resources to lay the proper legal and regulatory foundation. Failure to retain and work closely with intellectual property, business and regulatory counsel could prove financially disastrous for you.

Pradnya Pradhan Desh

Pradnya Pradhan Desh

Business Attorney - Bellevue, WA
Answered

There is one more aspect of this question: the international trade/import aspect of it. Under US Customs laws, every item that is produced in another country and imported into the United States is required to be marked with its country of origin in a manner that is conspicuous to the ultimate purchaser. Only products individually listed on the exemption list are exempted. You might be required to keep the "Made in China" label (for example) even if you are able to remove the branding.

Disclaimer:  Nothing in this post should be construed as legal advice or as creating an attorney-client... more
Daniel Nathan Ballard

Daniel Nathan Ballard

Business Attorney - Sacramento, CA
Answered

Question 1: Absent an agreement with the product's manufacturer, importing a branded product, removing its branding, and then repackaging the product with a different brand is unlawful "reverse passing off." See the case linked to below.

Question 2: Combining two branded products to make a third differently-branded product may be lawful under trademark / trade dress law depending on the characteristics [visual, physical state, composition] of the constituent products and the final product. Only your own attorney can properly evaluate the facts to provide an opinion. In addition, if one or both of the constituent products is claimed in a still-in-force patent the inclusion of the patented product to make the third may infringe the patent. Again, discuss this with your own attorney.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
Frank Anthony Natoli

Frank Anthony Natoli

Business Attorney - New York, NY
Answered

Hi,

There is a business concept known as "white labeling" which is exactly what you described only it is conducted and controlled through a written agreement.

Absent an agreement, this kind of activity can give rise to claims for what is commonly referred to as "reverse passing off." The idea here is that is deprives the consuming market of knowing the true source of the good as well as it deprives the source of the good its return on advertising, etc.

If, however, you are making "substantial" changes to the product and adding value then reselling this may nullify the claim. The big question here is how substantial the changes need to be within context.

Of course I suggest you consult an attorney before making an investment in this enterprise. You are welcome to contact me if you would like further clarification.

Best regards,
Frank
Natoli-Lapin, LLC
(see Disclaimer)

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
Pamela Koslyn

Pamela Koslyn

Business Attorney - Los Angeles, CA
Answered

From a trademark law perspective, either of your scenarios is probably ok, since your new product wouldn't be confusing any consumers. By making sure there are no identifying trademarks of the manufacturing company, a consumer would never know that you're not the manufacturer. That assumes that the product hasn't got any identifiable "trade dress," such as the shape of an Apple i-phone.

But there could be copyright, patent, and licensing issues, among others, depending on what this product is.

Sorry this can't be more definitive, but that's why you need to see your own IP lawyer so you can disclose all the relevant facts and they can apply those facts to the law.

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