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Reselling brand name item as new, is there a legal definition of new. Does commercial law define this or does the brand owner?

Cleveland, OH |

Here is the scenario, a brand name item is purchased from a major US retailer and purchased within the US. For simplicity sake, lets says its a t-shirt, its genuine and the item carries no warranty. Its taken home and listed on ebay without any changes to the item, ie it is never used. Question - Can this item be marketed and sold as New. Please support your answer by citing similar cases. Please be aware Im not asking if I have the right to sell this item, this is not a question regarding the first sale doctrine. The question centers on how the legal system defines an item as new and how buying an item at retail and reselling might affect that distinction. Im also interested in purchasing a formal opinion from the right expert.

Attorney Answers 3

Posted

I know of no legal definition of the term "new". New and unused are different. It's an interesting question, heaviliy dependent on facts and your true, undisclosed, goals. Misrepresentation in sales can be unfair trade practices. Interfering with established contracts for distribution can be a problem.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

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Asker

Posted

I have read some case law and searched the internet for similar situations. I had not found a case that centers on this issue, so does that in of itself mean this is not a pressing issue I should concern myself with. For the purpose of this discussion, please take what Im saying at face value and I will be more clear on my terms. Purchase an item new from the store, take it out of the store and market the item on Ebay as new, the goal is to make a profit. In regards to your follow up points of misrepresentation and utp. In your opinion would the law or brand have a valid claim regarding misrepresentation because the item is being sold as new or does purchasing an item at the retail level and reselling it make an item not new. Utp, I'm assuming your working under the assumption some type of distributor agreement is being circumvented. For the sake of this question, please assume these are plain vanilla purchases. Anyone could have entered this store and purchased the same exact thing for the same exact sale price.

Michael Charles Doland

Michael Charles Doland

Posted

Your mind is made up. Good luck with your business model.

Asker

Posted

First, I really appreciate your insights regarding this question and thank you for taking the time to provide a thoughtful reply. My reply was to help clarify the scenario. My mind is far from made up and based on the replies of other helpful Attorneys I plan to follow their advice and get a formal opinion. Regarding the last sentence, depending on the tone, it can mean one of a few things. Please let me know if you are indicating you think this business model is fraught with potential problems.

Michael Charles Doland

Michael Charles Doland

Posted

Further analysis would really be behond Avvo. There are so many good lawyers in Ohio.

Posted

I agree with Mr. Doland and would add that the more detail you include in the description the better able you are to defend against a misrepresentation or fraud charge. For example, if you can truthfully describe the article as "purchased new from a major US retailer and never used. In original sealed packaging." Etc., you are better off than simply saying "new" because a purchaser is on notice that the item was previously purchased at retail. I am not aware of a statutory definition of "new" in PA, but under Ohio law regulation of auctions, new merchandise is defined as "not previously sold." I am not an Ohio practitioner so I cannot advise you, based upon these hypothetical facts how your situation would be treated in Ohio. Whether the Ohio courts would reason by analogy and apply that definition to your facts is a question for experienced Ohio commercial counsel. I'd recommend you seek counsel from a local lawyer.

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Posted

I agree with both the prior answers, "new" means not previously sold in the same channel of trade. What you propose is not "new" but rather "unopened and never used". We are not giving you legal cases and I am not licensed in Ohio. You pay an Ohio attorney for that. Look up "consumer law" under find a lawyer tab here on Avvo

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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