May 22, 2018
Originally posted 2018-11-19 11:22:00
By Breanna Pendilton | amdlawgroup.com
It is important as a designer that you protect the image and reputation of your brand. In other words, you want the product that is hanging in the stores to be the product that you produced in the factory; nothing less and nothing more. This seems to be a common problem with “off the rack” designers. Even though you can no longer monitor the day to day whereabouts of your designs after it leaves your supervision, you still have rights which may help protect your brand in the future.
First, you, as the designer, should know what courts call the first sale doctrine. The first sale doctrine simply states that once a trademark owner sells a trademarked good, the buyer of the good is free to resell that particular good without permission of the trademark owner. For example, if Jane, an “off the rack” designer makes a wedding dress and sells it to a local boutique, Jane has no control over who the local boutique sells it to once they have purchased it. The boutique does not have to ask Jane for permission to resale it, nor do they have to give Jane any of their profit from the subsequent sale (unless Jane and the boutique state otherwise in a prior agreement). While the local boutique owes no duty to Jane when deciding on who to sell it to, when to sell it, and how much to sell it for, they DO owe a duty to Jane on HOW they sell it.
There are three limitations to the first sale doctrine. The first limitation is called quality control, which states that your product cannot be sold past its expiration and/or sold where there is a difference in quality which would injure the brand’s goodwill. Therefore, the boutique cannot sell Jane’s wedding dress if it is ripped and/or torn, as this could harm Jane’s reputation as a designer.
The second limitation involves repackaged goods. It is ok if the goods are repackaged, but the name of the repackager must be disclosed and revealed. If the boutique wants to package Jane’s wedding dress in their own wrapping, then it must be disclosed on the package that the wedding dress is packaged by the boutique, so as to cause no confusion to the consumer.
The third limitation involves repaired and/or reconditioned goods. It is ok to repair and recondition the goods, but the nature, quality, and source of the goods must be disclosed. If Jane’s wedding dress is somehow ripped on the sleeve, and the local boutique stitches the rip in the sleeve, it must be disclosed that the dress was ripped and restitched by the boutique, before it is sold to a consumer.
For many “off the rack” designers, the stores that display their clothing handle more than just the sale of their product. They help the customers try on the products, help fit the customers for a different size in the product, and help the customers purchase the product. With such a heavy hand in the sale of someone else’s design, it is imperative that designers are not only aware of these limitations, but are also enforcing the limitations to protect the essence of their brand.
AMD LAW’s Tip of the Day: You may not be selling your brand, but your brand is ALWAYS selling you! What is your product saying about you?
Image Credit: https:// flic.kr/p/kxaq8s