Is it legal to sell decanted perfumes as used items?
If I purchase an original perfume, decant it and sell it in a small quantity in plain bottles as a 'used' item extracted from original - am I acting within the law?
Would I be able to add the name of the product on the bottle without using the same font or likeness of the original? For example, if the product is called Homme for Him - if I make a label called Homme for Him but do not use the same font, only for descriptive purposes, would this be acceptable?
I am curious why there seem to be so much hoopla about re-selling a perfume second-hand, but no one argues that selling, say, a Mercedes second-hand and using the brand name and model in the advertising is somehow illegal. For some reason there are more grey-areas selling a perfume than selling a considerably more expensive item as a car.
While the question may seem simple, the answer is not simple, It depends on many factors, involving many areas of law. For example, if you sell someone else's fragrance in small bottles and put your label or brand name on the bottle, this could be a form of reverse trademark infringement--you are passing off someone else's product as your own. Further, there are state and federal regulatory requirements for products like this which you might violate if you decant perform and divide it into different containers. You would be handling liquid and chemical materials in a manner that could lead to contamination in violation of safety and regulatory requirements. Further, there are federal and state product labeling requirements which might be violated. Also, there are federal and state product testing requirements that cover both the bottles and the fluids contained in them---you can't sell products that pose a danger of fire, poison to children, or other such harms. Companies that produce products expend substantial resources on regulatory compliance, and you would have the same obligations as any other company. These requirements are complex and often differ from one state to another.
Nonetheless, it is not impossible to pursue your proposal pursuant to procedures for regulatory compliance and/or license agreements with the original manufacturer. If you want to pursue this, you should retain experienced IP and regulatory counsel to assist you in minimizing the risk that you cold face legal liability. This is not a business you can run from home or your garage---in most cities and states that is not legal. This is a business that requires sanitary manufacturing and distribution conditions that comply with applicable legal requirements. You will also require licenses of various IP rights. Thus, you will need to work with experienced legal counsel if you want to pursue this project.
I am not your lawyer and this is not intended to be legal advice on which you rely. My answer is merely intended to assist you in understanding some of the issues that you face so that you can make an intelligent choice when you hire legal counsel.
In general, there is nothing unlawful about reselling a legal product. But the maker can probably come up with some very good arguments to suggest that yours should be considered a grey market good because the manipulation of that product by you changes it to the extent that your market is essentially receiving a product that is "materially different" from the one that they sell. This material difference is the bases for a trademark infringement case. This doesn't mean that you will have no defenses to this, but it could be a problem. I suspect it will be if for example you are able to affect their sales by offering the same product in much smaller quantities thereby cutting into their business or something along those lines.
Before you jump into anything, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
Best regards,
Frank
Natoli-Legal, 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-Legal, LLC on the basis of this posting.
When you take the original perfume out of the original container and place in your own smaller containers there is at least the concern of contamination and that generally quality will be negatively impacted, and since you were not authorized to do this by the original trademark owner, you may be sued at least for trademark infringement.
You should discuss with an intellectual property attorney in a private consultation.
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