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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.

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Attorney answers 3

Posted

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.

Asker

Posted

Thank you. I am not in this situation just yet but as a business owner you want to make sure you iron out all the details.

Posted

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,
Frank
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.

Frank A. Natoli

Frank A. Natoli

Posted

I didn't mention this above, but it could be that your issues concerns how you "advertise" those products protected under MAP pricing. So it comes down to what you say in your ads NOT what you actually sell the products for if that makes sense.

Asker

Posted

Thank you that was very helpful. My issue is more toward my second quote of law. If I am allowed to use there copyrighted material while selling their specific product, how am I infringing? I am a new business so I want to lead with price. They must have some legal backing on their side if big ecommerce websites are complying. Is this because they are under contract? I have no contract but can still get products real cheap. I need that to be my edge to compete with these big chains.

Frank A. Natoli

Frank A. Natoli

Posted

Again, consult a lawyer in private so all the facts are clear. But you cannot use the images or logos, etc. without permission. If you are an authorized reseller you will usually receive these for this purpose or express permission to use them.

Asker

Posted

For example some big manufactures are hiring companies such as brandprotectionagency.com to enforce map. Is this only for people who have reseller contracts? The second law quote looks like it protects me from using copyrighted advertising material to sell their product. Meaning if I am selling a handbag, I need to show them a clear picture of the handbag with the logo.

Frank A. Natoli

Frank A. Natoli

Posted

MAP products are protected. It means, while you can sell it at any price you want, you cannot advertise those products for sale below the MAP. This is site is not a substitute for legal counsel and I have no idea what you are proposing at large.

Frank A. Natoli

Frank A. Natoli

Posted

Keep in mind too, that it will only apply if you are in a written agreement with the manufacturer.

Asker

Posted

Thank you I will consult but let me give example. I bought a lot of bags without any contract. I wish to sell them for $10. So I use my own pictures of the bag front back and logos to show they are authentic. Bag company says they don't want me to sell that cheap and if I don't change it they will sue. Since I have no contract and they are my own photos for selling the same product. Can I continue to sell it at that price given that the law states I can use copyrighted images to advertise that product? I guess my question is map only enforced if a contract is signed? I am sure big retailers all sign something to get big discount but. I know a guy. I will get legal advice just want to get as much general info as possible.

Asker

Posted

Please excuse grammar using my phone. Once again you have been real helpful and I appreciate the advice given

Asker

Posted

FYI I know anyone can sue for anything just trying to find out the likelihood of the outcome.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, you misunderstand what Avvo's for, and that's for finding a lawyer. Avvo is NOT for getting a detailed recipe on what to do so you can avoid hiring one, as that would just be foolish. I don't accept for a minute that you are not trying to avoid hiring a lawyer and will consult with one, But you need to realize that you are here because you know you don't know enough to do without a lawyer. Attorney Natoli has been very generous with his time and advice. You should reward him with a call and hire him to solve this for you.

Posted

"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.

Bruce E. Burdick

Bruce E. Burdick

Posted

You need that legal Rottweiler so that when you walk off the porch into the back yard to play with the big dogs, they look at and listen to your Rottweiler and give you some respect. Otherwise, you are going to get chased back onto the porch with your tail between your legs. Sorry to be so blunt, but this is the real world of dog eat dog out there.

Asker

Posted

Understood. I know as a business, I will need a lawyer on call but I like to have a firm grasp of the law myself. Even if the law is on my side, I can still be sued (who has not seen this before) but I would still like to know if I have a good defense. Who wants to start out on a slippery slope and be tied up in litigation. Since I am being proactive, I feel there is no need to waste his time with a consultation. So say he responded the law does protect me but I do get sued, I would retain him as he was very kind answering my inquiry.

Asker

Posted

Trust me I know, if the law was so cut and dry we would not need lawyers. I have seen my fair share of lawsuits that I cannot believe made it that far. I am fairly educated with reading comprehension but reading and actually practicing are two different things. There should be a paid section here for a detailed answer to get paid for your time. But I just want to make sure I am interpreting correctly and if there is a hitch I would retain him. Just like I would not ask an electrican to screw in a lightbulb, I woukd remember his assistance when I need a rewire.

Asker

Posted

Please excuse grammar I am using my phone