UNPAID invoice - Manufacturer

[quincy]

My thanks to both you and the authors for not redacting the following from your cited article:

In conclusion:

"There is nothing per se illegal about an unauthorized sale of genuine” goods."

Picking and choosing which parts of the whole to quote, huh?

How about: “However, brand owners are not without legal recourse against unauthorized dealers.”

But I am not fond of taking out parts. I think it is smarter and better to read the piece in its entirety.

My advice remains the same.

 

[Litigator22]

Picking and choosing which parts of the whole to quote, huh?

How about: “However, brand owners are not without legal recourse against unauthorized dealers.”

But I am not fond of taking out parts. I think it is smarter and better to read the piece in its entirety.

My advice remains the same.

I read with interest the entire bit of your NAM propaganda! Which notably comes up short of significant case law or statutory authority!

Now I invite you to read this - containing significant case law authority.

"The central focus in any trademark infringement claim is the likelihood of a buyer's confusion as to the origin, source or sponsorship of the goods in question. A trademark only gives the right to prohibit the use of it so as to protect the owner's good will and as a means of distinguishing the owner's product from that of another". (Some paraphrasing) Champion Spark Plug Co. vs. Sanders, United States Supreme Court, 33 U. S. 125, 67 S. Ct. 1136

"There is no violation of the Lanham (Trademark) Act, 15 U. S. C. 1051-1127 when the mark is used in a way that does not deceive the public."

"It would be anomalous if a trademark infringement claim would lie where the product (under examination) is in fact genuine and not spurious." See: Monte Carlo Shirt, Inc. vs. Daewoo International, 707 Fed 2nd 1054 (9th Circuit Court 1983)

Although the pronouncements in Monte Carlo are partly dictum the results seem of particular interest to the subject at hand.

There Monte Carlo had placed an order with the South Korean manufacturer Daewoo for the purchase of 2400 dozen men's shirts all to its specifications and bearing its registered trademark. The upshot is it refused to accept delivery of the shirts or honor payment as they arrived too late for Christmas sales.

In consequence, Daewoo's U'SA subsidiary resold the shirts while still bearing Monte Carlo's trademark to various discount retailers at a proven profit loss of $ 1,582,735.

Several cross civil actions followed wherein Monte Carlo sued Daewoo alleging (among other claims) trademark infringement in violation of the Lanhan (Trademark) Act.

The 9th Circuit Court upheld the trial court's denial of Monte Carlo's claim of trademark infringement - albeit Monte Carlo never authorized the resales. The appellate court reasoned that:

"In such a case there can be no deception as to the nature of the product. Buyers of the product, although perhaps mistaken about how the product came into the retailer's hands, get precisely what they bargain for."
________________________

Nothing like a friendly squabble to help pass the winter doldrums.

With best wishes, Lat.

 

[quincy]

I read with interest the entire bit of your NAM propaganda! Which notably comes up short of significant case law or statutory authority!

Now I invite you to read this - containing significant case law authority.

"The central focus in any trademark infringement claim is the likelihood of a buyer's confusion as to the origin, source or sponsorship of the goods in question. A trademark only gives the right to prohibit the use of it so as to protect the owner's good will and as a means of distinguishing the owner's product from that of another". (Some paraphrasing) Champion Spark Plug Co. vs. Sanders, United States Supreme Court, 33 U. S. 125, 67 S. Ct. 1136

"There is no violation of the Lanham (Trademark) Act, 15 U. S. C. 1051-1127 when the mark is used in a way that does not deceive the public."

"It would be anomalous if a trademark infringement claim would lie where the product (under examination) is in fact genuine and not spurious." See: Monte Carlo Shirt, Inc. vs. Daewoo International, 707 Fed 2nd 1054 (9th Circuit Court 1983)

Although the pronouncements in Monte Carlo are partly dictum the results seem of particular interest to the subject at hand.

There Monte Carlo had placed an order with the South Korean manufacturer Daewoo for the purchase of 2400 dozen men's shirts all to its specifications and bearing its registered trademark. The upshot is it refused to accept delivery of the shirts or honor payment as they arrived too late for Christmas sales.

In consequence, Daewoo's U'SA subsidiary resold the shirts while still bearing Monte Carlo's trademark to various discount retailers at a proven profit loss of $ 1,582,735.

Several cross civil actions followed wherein Monte Carlo sued Daewoo alleging (among other claims) trademark infringement in violation of the Lanhan (Trademark) Act.

The 9th Circuit Court upheld the trial court's denial of Monte Carlo's claim of trademark infringement - albeit Monte Carlo never authorized the resales. The appellate court reasoned that:

"In such a case there can be no deception as to the nature of the product. Buyers of the product, although perhaps mistaken about how the product came into the retailer's hands, get precisely what they bargain for."
________________________

Nothing like a friendly squabble to help pass the winter doldrums.

With best wishes, Lat.

New York is not in the 9th Circuit but the case is an interesting one.

It is late now but I will have more to say tomorrow on the bolded portion of the following quote from your Champion Spark Plug case : “... A trademark only gives the right to prohibit the use of it so as to protect the owner’s goodwill and as a means of distinguishing the owner’s product from that of another.” (bolding added)

You noted that there were several actions and cross actions in the Daewoo case. Trademark suits can get awfully messy. I hope we can help yb9469789 avoid a similar mess with his handbags.

 

[quincy]

“Goodwill” refers to the public’s recognition of a company’s trademark (brand name, logo, slogan) and the reputation of the brand among the consuming public. The value of a trademark is dependent on - in fact inseparable from - this goodwill. How a company’s product (or service) is presented to the public is therefore a priority for the holder of the trademark.

El Greco Leather Prod. Co., v Shoe World, Inc., 806 F.2d at 392 (2d Cir 1986): “The mere act of ordering a product to be labeled with a trademark does not deprive its holder of the right to control the product and the trademark.” https://casetext.com/case/el-greco-leather-products-co-v-shoe-world

Ryan v. Volpone Stamp, Co., 107 F.Supp.2d 369, 382 (SDNY 2002):
Goods are not genuine “if the trademark owner did not approve the original sale.”

Liz Claiborne, Inc. v Mademoiselle Knitwear, Inc., 979 F.Supp. 224, 230 (SDNY 1997):
“Trademarked goods produced by a manufacturer under contract with the trademark owner are not genuine goods until their sale under the trademark is authorized by the trademark owner.”

Dan Foam A/S v Brand Name Beds, LLC, 500 F.Supp. 2d 296, 318 (SDNY 2007):
“The First Sale Doctrine only applies if the trademark owner authorizes the first sale of goods.”

I can provide links to the above cases later if desired.

The bottom line for me is that, to better ensure no costly lawsuit results from the sale of the logo-ed handbags, yb9469789 would be wise to seek out a personal review from an IP attorney in his area of New York.

 

[Litigator22]

“Goodwill” refers to the public’s recognition of a company’s trademark (brand name, logo, slogan) and the reputation of the brand among the consuming public. The value of a trademark is dependent on - in fact inseparable from - this goodwill. How a company’s product (or service) is presented to the public is therefore a priority for the holder of the trademark.

El Greco Leather Prod. Co., v Shoe World, Inc., 806 F.2d at 392 (2d Cir 1986): “The mere act of ordering a product to be labeled with a trademark does not deprive its holder of the right to control the product and the trademark.” https://casetext.com/case/el-greco-leather-products-co-v-shoe-world

Ryan v. Volpone Stamp, Co., 107 F.Supp.2d 369, 382 (SDNY 2002):
Goods are not genuine “if the trademark owner did not approve the original sale.”

Liz Claiborne, Inc. v Mademoiselle Knitwear, Inc., 979 F.Supp. 224, 230 (SDNY 1997):
“Trademarked goods produced by a manufacturer under contract with the trademark owner are not genuine goods until their sale under the trademark is authorized by the trademark owner.”

Dan Foam A/S v Brand Name Beds, LLC, 500 F.Supp. 2d 296, 318 (SDNY 2007):
“The First Sale Doctrine only applies if the trademark owner authorizes the first sale of goods.”

I can provide links to the above cases later if desired.

The bottom line for me is that, to better ensure no costly lawsuit results from the sale of the logo-ed handbags, yb9469789 would be wise to seek out a personal review from an IP attorney in his area of New York.

Interesting reads, perhaps, but your listed authorities bear no significance to the issue at hand.

The issue being that in the instance of the buyer's default in payment for manufactured goods the manufacturer's rights to resell said goods pursuant to the UCC in the attempt to recoup some of its losses are restricted by the Lanham (Trademark) Act.

My position is that the rights of resale as afforded by the UCC are not restrained by any trademark law. Primarily because any such, distressed, and necessarily isolated sales by the manufacturer - whether the goods bear protected by genuine trade marking or not - could not under any reasonable interpretation be characterized as "Bona fide use of a trademark in the ordinary course of trade". That is, such sales of a marked product could not fall within the definition of commercial use of a mark as defined by the Act. (See Section 45 of the Lanham Act.)

An expansion of your theory would have it that a Trustee in bankruptcy (who is entrusted with all the rights of an attaching creditor) would be powerless to seize and sell for the benefit of unsecured creditors goods owned by the debtor all because the goods bore the debtor's registered trademark. No way did the framers of the Act intend such an inequitable result in affording such protection to a registrant.

Then again it behooves the plaintiff pursuing an infringement of trademark claim to demonstrate that the use of the mark as complained of has a reasonable tendency to imply an association between the registrant and the defendant, in other words, creating confusion in the marketplace. Perhaps others may differ, but I see little danger of so confusing a buyer of goods sold under such distressed, isolated and extraordinary circumstances - notably not in the ordinary course of trade.

Fini

 

[quincy]

...My position is that the rights of resale as afforded by the UCC are not restrained by any trademark law. ...

Fini

I understood from your prior posts that ^^^ was your position.

I like the “Fini.” It brings me hope that we are nearing the end of this thread.

 

[luisaluisaflores97]

However, reselling merchandise with the client's logo could potentially raise legal issues, especially if it involves intellectual property rights or violates any contractual agreements. The manufacturer should carefully review the terms of the contract and consult with a legal professional to ensure compliance with applicable laws.

In some cases, the manufacturer might have the right to place a lien on the goods or pursue legal remedies to recover the unpaid amount.

 

[quincy]

However, reselling merchandise with the client's logo could potentially raise legal issues, especially if it involves intellectual property rights or violates any contractual agreements. The manufacturer should carefully review the terms of the contract and consult with a legal professional to ensure compliance with applicable laws.

In some cases, the manufacturer might have the right to place a lien on the goods or pursue legal remedies to recover the unpaid amount.

Thank you, AI, for repeating information already provided.