Rebranding another companies product and selling it as your own

[JackFrost]

Saw an interesting thing today. A company called Media Cube has started selling a game console made by another company -> Ouya under there Media Cube brand. They are doing this without permission from Ouya. Media Cubes web site makes no mention of the Ouya except in one reference on their specs page where they say the Media cube is based on the Ouya. In fact , it is an Ouya which has had the Ouya name. removed and replaced with their own Media Cube name.

Is this breaking any IP, copyright , patent laws, or indeed fraud?. Many believe there is nothing wrong with this since they are buying them Ie Ouya is getting sales from it. Personally this seems wrong, but I can't put my finger on what laws etc this might be breaking?

 

[FlyingRon]

Probably not. If they came into possession of the units through legitimate channels they're free to do what they want with them. Of course, usually what the original manufacturer does is refuse to sell them to the rebranders (and threaten the wholesalers with discontinuance if they sell to this guy).
I don't see how it's fraud.

 

[Zigner]

Sorry, this forum is for US law only.

 

[quincy]

Saw an interesting thing today. A company called Media Cube has started selling a game console made by another company -> Ouya under there Media Cube brand. They are doing this without permission from Ouya. Media Cubes web site makes no mention of the Ouya except in one reference on their specs page where they say the Media cube is based on the Ouya. In fact , it is an Ouya which has had the Ouya name. removed and replaced with their own Media Cube name.

Is this breaking any IP, copyright , patent laws, or indeed fraud?. Many believe there is nothing wrong with this since they are buying them Ie Ouya is getting sales from it. Personally this seems wrong, but I can't put my finger on what laws etc this might be breaking?

JackFrost, depending on your country, there is a possibility that Media Cubes is infringing on one or more rights of Ouya.

There could potentially be a claim filed by Ouya under Section 43(a) of the Lanham Act. The claim could potentially be made that there is a palming off (or as here, a reverse palming off) and/or unfair competition.

It depends on the facts, though, and I have not investigated either company to see what is going on with them. *edit to add: The bolded portion in the quote above can be key.

 

[TheGeekess]

JackFrost, depending on your country, there is a possibility that Media Cubes is infringing on one or more rights of Ouya.

There could potentially be a claim filed by Ouya under Section 43(a) of the Lanham Act. The claim could potentially be made that there is a palming off (or as here, a reverse palming off) and/or unfair competition.

It depends on the facts, though, and I have not investigated either company to see what is going on with them.

And it could very well be that the company that is making one machine for one nameplate is making the same machine for another. Happens quite a bit in the computer world, car world, pharmaceutical world.

 

[quincy]

And it could very well be that the company that is making one machine for one nameplate is making the same machine for another. Happens quite a bit in the computer world, car world, pharmaceutical world.

True.

It depends on the facts as to whether there is any legal line crossed here. And I don't know these facts (including, for that matter, from what country JackFrost is posting).


Edit to add, not for the decision (this is on a motion for summary judgment) but for the good court discussion on what is looked at when one company tries to profit off the product of another company: Mary Kay, Inc v Amy L. Weber, et al, U.S. District Court, Northern District Texas, Dallas Division; Case No. 3:08-cv-00776-G-BD (2/20/2009). A link to the case: http://www.pinklighthouse.com/wp-content/uploads/2009/03/17714255627.pdf.

 

[JackFrost]

Guys, just to clarify. both Ouya and Media Cube are US companies under US law. So the question pertains to what US copyright, IP, Patent or laws generally may be broken by Media Cube in doing what they are doing.


Thanks for the replies so far by the way.

 

[Zigner]

Guys, just to clarify. both Ouya and Media Cube are US companies under US law. So the question pertains to what US copyright, IP, Patent or laws generally may be broken by Media Cube in doing what they are doing.

Thanks for the replies so far by the way.

How/why does this matter to you?

 

[JackFrost]

How/why does this matter to you?

Learning about US Copyright, IP etc .

 

[TheGeekess]

Learning about US Copyright, IP etc .

So, it's a hypothetical/homework.

Alrighty then.

 

[quincy]

Did you read the Mary Kay suit, the link of which is provided above? The court decision goes over tortious interference, unfair competition, passing off and trademark infringement under the Lanham Act, and also gives an example of some of the state claims that can support an action (in this suit, the state is Texas) - state unfair competition laws, trademark infringement and unjust enrichment.

These are just some of the claims that can be considered when one company is accused of infringing on the rights of another company.

For additional information - all you could ever want to know about IP laws in the U.S. - you can visit the U.S. official government websites. For copyright laws, go to http://www.copyright.gov and for trademark and patent laws, go to http://www.uspto.gov.

You still did not mention your state name.

 

[justalayman]

nobody appears to know how media cube is acquiring their units. Nobody seems to know what, if any, permission they have to do what they are doing.

I looked into this although not much. This is what I found.

media cube takes an ouya unit, puts their own badge on it, tosses in a little software and sells it as not only the original product (a game system), but as a product the ouya does not claim to be; You can watch TV over the internet and a few other things on a media cube where you cannot on an ouya.

there is also some speculation that media cube is all a scam and will disappear once there are enough unhappy customers that did not get a product that does what media cube promises to do (like allows you to watch tv over the internet, and whatever else they claim the media cube does that the ouya doesn't) and everybody wants their money back.

I did find that ouya advertises their system software to be open and even suggests hacking it so I don't think there are any IP issues with that part of it. The only thing I can see that might be an issue would be with the rebranding, the ouya logos are still evident. That could be an issue if ouya has an issue with the activity. I do not believe even the first sale doctrine would allow a company to rebrand a product and effectively use the original logo and design claiming is to be their own. Even though media cube states (only once from what I have found and what others have reported) that the media cube starts life as an ouya and then media cube modifies it and viola', you now have a rocket ship when originally you had a go kart, at least that is how media cube makes it sound.

 

[quincy]

... media cube takes an ouya unit, puts their own badge on it, tosses in a little software and sells it as not only the original product (a game system), but as a product the ouya does not claim to be; You can watch TV over the internet and a few other things on a media cube where you cannot on an ouya.

... the ouya logos are still evident. That could be an issue if ouya has an issue with the activity. I do not believe even the first sale doctrine would allow a company to rebrand a product and effectively use the original logo and design claiming is to be their own. Even though media cube states (only once from what I have found and what others have reported) that the media cube starts life as an ouya and then media cube modifies it ...

Thanks for looking into the two companies, justalayman. I was going to and then decided I didn't want to.

What is quoted in your post above is what looks to be the potential problem areas (and these, as you said, would only be problem areas if Ouya decides these are problem areas). Based strictly on what you found out about the companies, it appears Media Cube is altering the Ouya product - making a material difference in the original product - but marketing the product with the Ouya trademark. Modifying the original product and continuing to use the original trademark - this is legally problematic.

Even if there is no evidence of consumer confusion between Media Cube and Ouya, there are plenty of other claims Ouya could consider, should it decide to.



Here is a link to an older forum thread that has a list of infringement cases where "material difference" in the resale of products is discussed: https://forum.freeadvice.com/sports-arts-entertainment-law-86/selling-reconstructed-hockey-jerseys-legal-506442.html

 

[JackFrost]

nobody appears to know how media cube is acquiring their units. Nobody seems to know what, if any, permission they have to do what they are doing.

I looked into this although not much. This is what I found.

media cube takes an ouya unit, puts their own badge on it, tosses in a little software and sells it as not only the original product (a game system), but as a product the ouya does not claim to be; You can watch TV over the internet and a few other things on a media cube where you cannot on an ouya.

there is also some speculation that media cube is all a scam and will disappear once there are enough unhappy customers that did not get a product that does what media cube promises to do (like allows you to watch tv over the internet, and whatever else they claim the media cube does that the ouya doesn't) and everybody wants their money back.

I did find that ouya advertises their system software to be open and even suggests hacking it so I don't think there are any IP issues with that part of it. The only thing I can see that might be an issue would be with the rebranding, the ouya logos are still evident. That could be an issue if ouya has an issue with the activity. I do not believe even the first sale doctrine would allow a company to rebrand a product and effectively use the original logo and design claiming is to be their own. Even though media cube states (only once from what I have found and what others have reported) that the media cube starts life as an ouya and then media cube modifies it and viola', you now have a rocket ship when originally you had a go kart, at least that is how media cube makes it sound.

Thanks for you reply.
I must admit I have scoured Media Cubes web site several times, but I still can't find any image of OUYA's logo?.

In regards to permission. I did see that someone had tweeted OUYA's CEO about the Media Cube, her response was she wasn't aware of it and was going to look into it. ie strongly suggesting there was no permission given.

 

[justalayman]

In regards to permission. I did see that someone had tweeted OUYA's CEO about the Media Cube, her response was she wasn't aware of it and was going to look into it. ie strongly suggesting there was no permission given.

or it was a generic response to stall the question as she may not be aware of the matter being something their company actually is involved in.

I must admit I have scoured Media Cubes web site several times, but I still can't find any image of OUYA's logo?.

Maybe I'm wrong. I would have sworn I saw some sort of insignia on both of the units (actually is was on the controllers) but now I cannot find what I was looking at before. That does remove some of the concern impropriety.

in the end, unless ouya has an issue with the situation and does something, it would appear to be tacit approval of the activity.