fair use rights - taking 2 products and making 1 for reselling

[lowenstat]

taking 2 products and making 1 for reselling

california

If you can take 2 products that have IP rights and combine them into your own single product and get your own IP rights (possibly) then this doesn't give you the right to sell the resulting item?

What example cases is this legal for and not legal for?

Thanks for your time

 

[divgradcurl]

california

If you can take 2 products that have IP rights and combine them into your own single product and get your own IP rights (possibly) then this doesn't give you the right to sell the resulting item?

What example cases is this legal for and not legal for?

Thanks for your time

It depends on the IP rights, and what rights have been exhausted.

 

[lowenstat]

If both items are purchased retail, combined and resold then in what sample situations might it be ok and some other in which it is more then likely wrong.

For example, - all items purchased at local retail in US and assume "proper" advertising using only company x name for description, etc, etc.

1 - Take a book, cut off its edges and apply a hinge and resell it. Problem?

2- Take a PC, swap out its hard drive for a larger one and resell it. Problem?

3 - Take a hard drive and a printed set of instructions (that I own rights for) for swapping it in the PC and resell it. Problem?

4 - Take a voice recorder, connect a high quality plug in microphone and resell it. Problem?

I am so confused on what we are really allowed to do that I end up with no clue during different parts of the day and sure during other parts.

I understand you cant judge a case based on a line of text but some "chances are" scenarious with why or why nots based on experience might help me get at lease a clue.

I can say that I could probably get a patent on #1 and a copyright on the instructions created on #2 but that would be it. But for reselling, I have not nailed the correct way to think yet!

 

[divgradcurl]

If both items are purchased retail, combined and resold then in what sample situations might it be ok and some other in which it is more then likely wrong.

For example, - all items purchased at local retail in US and assume "proper" advertising using only company x name for description, etc, etc.

1 - Take a book, cut off its edges and apply a hinge and resell it. Problem?

Almost certainly not.

2- Take a PC, swap out its hard drive for a larger one and resell it. Problem?

If someone has a patent on the combination, yes. Otherwise, probably not -- but again, this depends on an analysis of all of the actual facts.

3 - Take a hard drive and a printed set of instructions (that I own rights for) for swapping it in the PC and resell it. Problem?

If someone has a patent on the combination, yes. Otherwise, probably not -- but again, this depends on an analysis of all of the actual facts.

4 - Take a voice recorder, connect a high quality plug in microphone and resell it. Problem?

If someone has a patent on the combination, yes. Otherwise, probably not -- but again, this depends on an analysis of all of the actual facts.

I am so confused on what we are really allowed to do that I end up with no clue during different parts of the day and sure during other parts.

I understand you cant judge a case based on a line of text but some "chances are" scenarious with why or why nots based on experience might help me get at lease a clue.

I can say that I could probably get a patent on #1 and a copyright on the instructions created on #2 but that would be it. But for reselling, I have not nailed the correct way to think yet!

Forget about your own IP -- patents especially -- for the purposes of this discussion. A patent grants the right to exclude. It's a property right -- it grants you the right to keep other from infringing your patent. It does not grant you the right to practice the patent -- you can only practice the patent if you are not stepping on someone else's patent rights.

You can't pick out parts of your situation, analyze them, and then figure out whether or not the "sum" of the parts is legal -- you need to look at and analyze the entire system.

 

[Zigner]

Lowen - you really should keep your questions in one thread - it'll give everyone a much better view of your problems.
In any case - sounds like you might be in trouble. If you can't even afford a consult with an attorney, how will you afford your defense to the lawsuit?

 

[lowenstat]

I didn't mean to imply I really wanted a patent, just mentioning that I do have a basic line of thinking for that but not reselling rights. Sorry to confuse.

Yes parts and whole don't work. I am only trying to get a way of thinking about what can be resold. I find it VERY difficult to believe so far that changing and possibly improving a device that already has a "y" with a bigger "Y" could infringe! I don’t doubt anyone - its just where my current thinking is and I am struggling through it.

Realistically, could/does Dell have a patent on the entire PC which includes a hard drive they do not own rights to such that we couldn't upgrade it and resell it? There are so many upgrade services that hundreds of companies offer with no doubt many without being authed to do so.

 

[lowenstat]

Lowen - you really should keep your questions in one thread - it'll give everyone a much better view of your problems.
In any case - sounds like you might be in trouble. If you can't even afford a consult with an attorney, how will you afford your defense to the lawsuit?

Again, these are really, for the most part, separate lines of discussion. I dont think creating a single thread and discussion many various parts of the complex laws would benefit me.

One of the threads might have been better in anotehr thread but certainly not all.

Why not just create a thread named "User Name #45789" and go for broke. It would be a thread that winds around too much with too many paths.

Maybe I am differnt because I am looking into specifics of various parts in detail and most just give one liners, look for a reply and they are done. Please be patient with me if you will. Everything is working out well and I think excellent threads for the benefit of all maybe.

 

[lowenstat]

divgradcurl,

Just curious, I see you said probably not for all those examples.

I thought for sure a few would cause a problem right off the bat.

Assuming my advertising is proper, how is the situation I state any different?

I thought there were problems with them simply saying and making up something about my end product causes them some pain/loss/whatever and thus infringing and it becomes valid in courts eyes.

Thx

 

[divgradcurl]

Assuming my advertising is proper, how is the situation I state any different?

It may not be. The problem you are facing is the trademark holder thinks what you are doing is improper, and is telling you to stop.

The other thing is if you were taking, say, a brand-name PC (like a Dell, for example), and swapping parts and selling it as a upgraded Dell system, you may have the same issues.

I don't think it is fair to say that your "advertising is proper." I don't know if it is or not. Apparently, the trademark holder thinks it is not. That is the reality of your situation.

I thought there were problems with them simply saying and making up something about my end product causes them some pain/loss/whatever and thus infringing and it becomes valid in courts eyes.

I don't think you are getting the point. You really need to see an attorney, who can review all of the facts and advise you accordingly. Someone else mentioned that "someone who represents themselves has a fool for a client." That's true, but the reason why it's true is because you are too involved, too attached to this, to be able to make a rational, objective assessment of your issue.

This phrase implies to me that you don't really understand the entire situation. The trademark holder doesn't just "make something up" -- they have to prove up their case, in court. I don't know if they have a case or not -- I haven't seen your ads, or the C&D letter, none of this, all I have is your assessment of the facts -- nobody can advise you without really digging into the situation, maybe you are right, maybe you are wrong, who knows.

 

[lowenstat]

Thanks again. Yes, attorney will be in the works as mentioned before regardless of what progresses.

Let me turn this around. If I am company x and this person is upgrading the memory in our electronic games just produced last year and reselling them. Their advertising clearly (assume it) details this mod and that they are not connected to us and thtey are only using our name descriptively.

We don't want them touching our equipment and reselling it. We don't like them using our name. We didn't authorize them as a dealer, let alone an upgrader.

We don't know what quality they have when it comes to moding the items. And even though we let everyone else do it We just don't want them doing it? What is my plan of attack that might lead to sucess in court?

What are our list of valid arguments that can be made?

Where will we most likely fail in stopping these people?

 

[divgradcurl]

There are not a lot of general rules that you can apply here -- you need to take things on a fact-specific basis. What I can tell you is that, in such a case, suing under trademark law -- trademark infringement, for "passing off" your modified goods under our trademark -- would likely be the key attack. But you are in California, so you would also likely see a Business and Professions Code Section 17200 action (unfair business, which includes all sorts of good like false advertising, etc.), and, depending on the facts of the situation, we would throw in the kitchen sink -- maybe tortious interference,maybe a fraud allegation, certainly if there is a patent involved, we would sue under that, any copyright violations (such as a DMCA action if you bypassed, or give people information how to bypass, and copy protections, or if you cracked a copy protection), etc. There are a lot of different things someone could sue for, depending on the facts, and if a lawsuit happens, they will sue for everything they can think of, because they only get one shot at this, in general.

As far as which are the strongest one? Well, who knows -- it will depend on the facts. From what you have written, they may have a good trademark case. The 17200 action can be very, very broad, so you can catch almost anyone under this section -- and it's got some bad subsections, like payment of attorney's fees in some cases.

 

[lowenstat]

I appreciate the reply. It is a bit too general given all the facts ive presented. I know you wont call it a fact until I produce it into evidence in a trial but what else do you have to work on in this forum to be honest. I know I can't take anything as advice here to protect you and that is fine.

Just becuase I am not presenting my entire case with uploads of the ads and etc doesnt mean that I can't get ideas on what to do to move forward. If that reply were to be hire an attorney then there is no reason for a forum (giggle).

Even though company x does not want me to do so - it seems from all my research that they can not legally stop me from:

I can resell striaght products as long as advertised correctly.

I can resell modified products as long as advertised correctly.

Providing a service to upgrade their product as long as advertised correctly.

Resell product kits for others to modify company x product as long as advertised correctly.

It really does appear all problems hinge on advertising only in my case.

And advertising is very simple variable to change - for example:

I am allowed to use company x descriptive name in text.

The company logo can be on the product in my own picture of the product - not soley focused on that logo.

Explain that is it an upgrade performed by me and not company x and that I am not associated with company x.

Do I have to explain that the warranty might be voided (1) if the upgrade was performed in teh case of selling parts to do so? (2) that the warranty is voided since I upgraded it in the case of modifying and reslling the actual equipment? If so then why?

And before taking action on any of these steps reviwe with attorney before placeing and ad. This can get costly each time I change the ad. What would you suggest?

 

[Zigner]

You already said you were going to seek the advice of an attorney...

 

[divgradcurl]

I appreciate the reply. It is a bit too general given all the facts ive presented. I know you wont call it a fact until I produce it into evidence in a trial but what else do you have to work on in this forum to be honest. I know I can't take anything as advice here to protect you and that is fine.

You are right, I am not going to give you specific advice, for any number of reasons. I am also not going to do any research on your issue -- that's why the general replies. Sure, I could take the facts you've given, and try and work up some specfic causes of action and look up the latest caselaw and so on -- but I am not your attorney, and I don't want to create an attorney-client relationship, and that's really beyond the scope of this forum.

Just becuase I am not presenting my entire case with uploads of the ads and etc doesnt mean that I can't get ideas on what to do to move forward. If that reply were to be hire an attorney then there is no reason for a forum (giggle).

Most of the questions on this forum can be answered by giving information for the poster to continue their research into their problem, or find out who to talk with, or what law applies, etc. When you start getting into the specifics of your own case, then the RIGHT answer is to go see a lawyer -- the WRONG answer is to make people think that a post on a public message board, where anyone can provide a response (lawyer and nonlawyer alike), and where the full facts are never available, can substitute for real, legal advice.

Even though company x does not want me to do so - it seems from all my research that they can not legally stop me from:

I can resell striaght products as long as advertised correctly.

Generally true, if the products are legally procured.

I can resell modified products as long as advertised correctly.

Generally true, but the key here is that "advertised correctly" may mean not using the manufacturer's name, the product name, or a logo in your advertising.

Providing a service to upgrade their product as long as advertised correctly.

Generally correct.

Resell product kits for others to modify company x product as long as advertised correctly.

Generally correct. But again, saying "advertised correctly" glosses over a lot of issues.

It really does appear all problems hinge on advertising only in my case.

And advertising is very simple variable to change - for example:

I am allowed to use company x descriptive name in text.

Maybe. Like I said, there are cases where the simple use of a trademark in metadata has been found to be infringing. It all depends on ALL of the facts of your situation.

The company logo can be on the product in my own picture of the product - not soley focused on that logo.

Again, maybe. You are glossing over a lot of nuances and issues here. Trademark law, like most of the law in this country, is not made up of a bunch of "bright line" rules -- it's all shades of grey. Get far enough away from the hazy area, and you can be pretty confident in being right, but you are deep in that hazy area where specifics mean something.

Explain that is it an upgrade performed by me and not company x and that I am not associated with company x.

A disclaimer like this will NOT protect you if you are otherwise infringing. Google "Sleekcraft Boats" for the analysis and test for "likelihood of confusion" that is used in the 9th circuit if you want to learn some things. http://bulk.resource.org/courts.gov/c/F2/599/599.F2d.341.76-1744.html

Do I have to explain that the warranty might be voided (1) if the upgrade was performed in teh case of selling parts to do so? (2) that the warranty is voided since I upgraded it in the case of modifying and reslling the actual equipment? If so then why?

See above.

And before taking action on any of these steps reviwe with attorney before placeing and ad. This can get costly each time I change the ad. What would you suggest?

Once you get an attorney involved to give you the correct parameters where you can operate, you probably don't need clearance each time to make a new ad.

 

[justalayman]

just one little odd point that has been poking me;

if these are DVR's, don;t most dvr's have some sort of programming on the system to perform certain actions such as;

will not skip commercials (I believe that is one of the sticking points of allowing recording of certain programming)

program required to obtain service from the comapny the DVR is associated with including a search program, menu program, and others.

If so, then would changing out the hard drive remove whatever programming is on the DVR and as such, would that cause some problem (legally) with altering the DVR units?

obviously divradcurl has provided much more than I ever could and has provided a huge amount of info. my thoughts are just that of a layman without a thorough knowledge of the DVR's and their operating programs but this just seemed to be a possibility, to me.

This seemed way off from the patent and trademark problems and dealt more with altering a functioning system to illegally utilize services associated with the DVR's but not actually a part of the DVR's.

Feel free to ignore me if I am way off base. Merely trying to mention what looks, to me, like a possible problem.