can i resell or not?

[ajl]

Hi all, my first post on this great forum.

I am setting up an online shop. In addition to our own products I would like to sell a famous high street stores products as well. It's not possible to buy their products wholesale, but I can buy there products at slightly less than their store price. I am hoping by stocking their products as well as our own it will attract customers to our site. However the company states on their website that their products are not intended to be resold.

So can I resell their stuff on my site? Will I be in any way breaking the law or anything? Could I use their brand name on my site/advertising etc?

Thanks for the help.

 

[liquidauctions]

You cant sell thier products at all, the only way you will be buying the products is with staff discount??
It wont be long before they try to close you down. I wouldnt bother with it.

 

[ajl]

No not a staff discount, they occasionally have a % discount and I would just buy enough from them when I had this discount.

Is it illigal to resell their products?

 

[oldeagleeye]

No it is not illlegal PROVIDING that you make it clear they are 2nd hand and do not come with the companies normal warranty. You have to ask yourself then is it worth it. That declaration has to be up front so you can't just srick a picture La Costa Jumper or whatever hoping to pull people in. That is called passing off at law and you could be sue.

The answer is don't try to cheat. You will get caught out.

 

[ajl]

thanks for the help

 

[VeryMark]

It is not illegal to use someone else's trade mark to identify their own genuine goods as long as the condition of the goods is made clear, and the use is "in accordance with honest practices in industrial or commercial matters" and such use does neither "without due cause take unfair advantage of", nor is "detrimental to, the distinctive character or repute of the trade mark".

However, if they have sold the goods to you with a condition attached, e.g. that the goods are supplied only for personal use and not for resale, then you could be deemed to be in breach of contract by doing otherwise.

The other practical question of course is the likelihood of the company concerned taking legal action against you or not - if you are a high profile reseller, then action might be more likely than otherwise of course, even if the other sides's case was not particularly strong.

 

[oldeagleeye]

WOW. Verymark

You managed to say eactly the same as me but in double the number of words. Have lawyers taken to charging by the sentence or pragraph now instead of the letter. Bet you a pound to a penny it don't work out cheaper for the punter.

Robert

 

[toastking]

Welcome to the world of grey marketing!

It happens all the time, its inethical but there are ways to do it which are legal. I would not use their logos or anything in your advertising and I would be careful to do everything I could to ensure it was legal, whatever your plans may be.

 

[Cobby]

WOW. Verymark

You managed to say eactly the same as me but in double the number of words. Have lawyers taken to charging by the sentence or pragraph now instead of the letter. Bet you a pound to a penny it don't work out cheaper for the punter.

Robert

Thanks for that Robert, but please don't criticise him for making a detailed and helpful post - he may have been repeating your reply but it was in decent English and he elaborated on just 'yes' or 'no' (and he didn't have a chip on his shoulder either ).

 

[oldeagleeye]

Jesus. What is IT with this forum. I wasn't knocking Verymark. I just made a humerous comment. Chill out for christ sake.

 

[VeryMark]

I didn't actually say just the same thing as I didn't mention the common law offence of passing off, which is a different thing from statutory trade mark infringement and not relevant if the condition of the goods is clear and you don't appear to be something you're not.

I can't make the language simple because the wording of the Trade Marks Act isn't simple I'm afraid, and it's difficult to be more precise when answering a hypothetical question.

The point about legalese is that it does have a practical intent as you are sometimes in law trying to use the English language - in agreements for example - in a mathematically precise fashion so that the words are only capable of one meaning, whereas English is naturally a rich and subtle language capable of many shades of meaning.

Of course, it's ridiculous to go to the opposite extreme and use tortuously convoluted expressions that either the people for whom the agreement is intended don't understand or which don't have any practical utility but, equally, the last thing you want is a document with wording which can be read with different meanings!

 

[oldeagleeye]

Oh dear Philip. You left the bit about passing off at law out because you didn't think important, Sorry I assumed you would as it emphasised the need to make clear the status of the goods and not to imply that the OP was in anyway an official dealer of representative of the copyright holder.

You then come up Verymark with another lengthy load of jargon typical of a lawyer with all this party of the first party and their relationship to the third party nonsense. That the feminine equals the mescaline a vica versa. It maybe needed on a formal contract but hardly appropriate in answering a simple question.

Come on now it is obvious the OP isn't from the UK and I doubt he learned Latin at school. All he wanted to know is can he sell other companies products. The answer yes providing he makes it clear that they come 2nd hand status and he does not infringe copyright by displaying the originators logo or trademark.

Why anyone would want to buy 2nd hand for such a paltry discount is another matter.

Anyway.Lets have no more nit picking eh. As long as I get the last few words in and they are wishing you all a very merry crimbo and happy - healthy and prosperous new year.

 

[Cobby]

Oh dear Philip. You left the bit about passing off at law out because you didn't think important, Sorry I assumed you would as it emphasised the need to make clear the status of the goods and not to imply that the OP was in anyway an official dealer of representative of the copyright holder.

You then come up Verymark with another lengthy load of jargon typical of a lawyer with all this party of the first party and their relationship to the third party nonsense. That the feminine equals the mescaline a vica versa. It maybe needed on a formal contract but hardly appropriate in answering a simple question.

Come on now it is obvious the OP isn't from the UK and I doubt he learned Latin at school. All he wanted to know is can he sell other companies products. The answer yes providing he makes it clear that they come 2nd hand status and he does not infringe copyright by displaying the originators logo or trademark.

Why anyone would want to buy 2nd hand for such a paltry discount is another matter.

Anyway.Lets have no more nit picking eh. As long as I get the last few words in and they are wishing you all a very merry crimbo and happy - healthy and prosperous new year.

Yes, your 'man-on-the-street' watered-down answer is far more helpful than a reply from a lawyer that works in said field. Thanks and Merry Christmas to you too! (have fun with your 'mescaline', hehe )

 

[Chris Ashdown]

Ok you legal jockeys

A person runs a newsagents and buys say Mars bars from a cash and carry and re-sells them to his customers

If his cash and carry runs out and he wants to keep his customers happy so he goes to the local supermarket and buys a box of them and sells them

Are you saying he has to mark them secondhand?

I know some companies refuse to supply all and sundry and can control who sells their goods and this makes the grey market illegal, but the OP has not said if he is buying these products but just something he can buy from one merchant and resell, he would have problems with guarantee's etc if it went wrong, but thats not the question

 

[oldeagleeye]

We all know this goes on all the time Chris and often those BOGOF deals on Birds Eye Foods etc in Iceland are quickly sold out as the owner of the local grocery store sends everyone in the family to snap up because the supermarkets have got wise and impose limits.

As regards of buying from a Cash & Carry. By creating an account you automatically become an authorised retailer for the products on sale. The big players like Booker etc will even provide free chillers for Coke 7UP etc. and free promotional material on almost everything.

Now let me translate that for you. The party of the first party (also known as the customer) is allowed to sell the products of the third party simply by default when the party of the first party ( the customer ) signs up with the second party ( the cash & carry ). All parties to this agreement should note that the feminine includes the mascaline ( that means both Mars bar light & dark . Both frozen and non frozen).

If in any doubt about your position in reselling Mars Bars however please consult a Trade/Copyright Lawyer and don't forget to take your cash along. About £2K will do.

 

[VeryMark]

A question about Mars Bars bought in a cash-and-carry and intended to be resold is entirely different from one about famous brand products such as e.g. Gucci footwear sold through an authorised distribution network where the logo may be the badge of a franchised outlet.

......... and for anyone that needs practical advice rather than reading hypothetical scenarios (and we try and help on these forums for free), our fees are not only reasonable and always agreed in advance but nothing like £2K unless you've got yourself into really really deep hot water!

 

[oldeagleeye]

I can tell you are going to be fun company reading those christmas cracker jokes come the dinner on the 25th. Chill out Philip your sounding older than I am.

BTW. If you read between the lines I think the OP might - just might be asking whether he can get away with selling counterfieits by having a genuine sample on his web site.

As a professional then you might want to put a little disclaimer in your signiture stating that any comments you make are off the cuff and should not be regarded as professional advice. I believe a number of accountants and solicitors in the forum do this so you might want to check out the wording.

 

[Chris Ashdown]

I must admit I thought the Op was actually saying he could buy some goods in a sales promotion of some sort and then sell them to joe public (in the first part) Sue Public(in the 2nd Part) and Make some dosh in the (bank part), but now you have both worried him about the (third part 2K) he has gone back to the drawing board and will now consider selling Mars bars (all versions in seperate Parts)

Have a great Christmas

 

[Williams lester]

I must admit I thought the Op was actually saying he could buy some goods in a sales promotion of some sort and then sell them to joe public (in the first part) Sue Public(in the 2nd Part) and Make some dosh in the (bank part), but now you have both worried him about the (third part 2K) he has gone back to the drawing board and will now consider selling Mars bars (all versions in seperate Parts)

Have a great Christmas

He would probably be better off selling Bounty bars....as they already come in two parts...

I'll get my coat

 

[oldeagleeye]

Quote. He would probably be better off selling Bounty bars....as they already come in two parts...

Now there is an idea. He could even stash the profits in a bank in the Carribbean or the BVI and sing underneath the coconut tree all day long.

 

[FreelanceSoftwareDeveloper]

This is an interesting topic. Are the following 2 scenarios the same:

1. I go to Tesco and buy Tesco's own brand clothing, and sell this in my own shop/website, as brand new with tags.

2. I go to Tesco and buy known brand clothing, and sell this in my own shop/website, as brand new with tags.

Number 1 is obvious what is being done, so I guess Tesco would ask for it to be removed immediately, are the entitled to do this?

Number 2 is much more difficult as the supply chain could be a whole variety of options.

Legally are they the same scenario?

Does the brand in scenario 2 have any rights to stop you selling the product or to disclose your supplier?

I know most brands wouldn't allow trade accounts small online retailers but if you legally buy the goods can they have any say in what you do with them?

Matt

 

[Simon12]

I am not an expert in this but my understanging is you can sell anything you have bought in the EU within the EU. For example the Tesco Levi case only ruled that Tesco could not import there jeans from outside the EU (without Levi's consent). Based on this I would think that Tesco could by Levis from a UK distributor and resell them without there consent and therefore you could by Tesco brand products from Tesco's and resell them (inside the EU). Using there trademark in your store or website would be a different issue though I would think. Anyway I am sure someone is about to tell me i'm wrong.

 

[FreelanceSoftwareDeveloper]

I could understand if Tesco could stop you reselling their items as they are a retailer and it's their brand solely for their use. I think some items do have a clause to this affect on the packaging, however that doesn't make it legally binding.

But a branded item has come from a manufacturer for the purpose of resale.

The Tesco/Levi case is a good example, I remember that now. Whilst they may not want you to sell them if you have obtained them legally can they do anything about it.

The other aspect may be if the manufacturer has agreed a exclusive resale rights with a retailer(s). Does it have any affect or can they do nothing other than refuse to honour any warranty or support for example?

 

[logicfusion]

The Tesco/Levi case is a good example, I remember that now. Whilst they may not want you to sell them if you have obtained them legally can they do anything about it.

Wasn't the Tesco / Levi case to do with the fact that Tesco imported the jeans from outside the EU?

I thought that was specifically why the court found against them and no other reason.

Had Tesco imported the jeans from within the UK, I didn't think anyone could have touched them.

 

[FreelanceSoftwareDeveloper]

Wasn't the Tesco / Levi case to do with the fact that Tesco imported the jeans from outside the EU?

I thought that was specifically why the court found against them and no other reason.

Had Tesco imported the jeans from within the UK, I didn't think anyone could have touched them.

I've just looked at it now. Basically Tesco are not allowed to import from outside of the EU, but can source within the EU.

So basically if you source genuine branded goods within the EU you have the rights to sell them. You may not be authorised by the brand so I assume they can refuse to provide any support/warranty.

I believe you can't use their trademark, such as starting a website www.cut-price-levis... Not sure about using brand logos/images on the website for the purpose of advertising the goods.

Looking at the OP though (sorry if I just hijacked the thread!), I think they are asking about goods branded by the high street retailers, whether it be Tesco Beans, River Island Jeans, B&Q Screwdrivers.

 

[logicfusion]

I believe you can't use their trademark, such as starting a website www.cut-price-levis... Not sure about using brand logos/images on the website for the purpose of advertising the goods.

Interesting point. I can understand about not being able to display a visual trade mark.

But surely you would be allowed to state in text the make of the product and of course fully acknowledge the registered trade mark where appropriate.

 

[VeryMark]

It is an interesting point as to whether you can use a logo or not to resell goods bearing that logo since (a) the logo might be the badge of an authorised reseller, and its use therefore vulnerable to a passing off action (if not trade mark infringement) for claimed misuse, and (b) the logo might also be copyright, and unauthorised use thus subject to a copyright infringement action.

If in doubt, the prudent course is thus not to use logos.

 

[FreelanceSoftwareDeveloper]

It is an interesting point as to whether you can use a logo or not to resell goods bearing that logo since (a) the logo might be the badge of an authorised reseller, and its use therefore vulnerable to a passing off action (if not trade mark infringement) for claimed misuse, and (b) the logo might also be copyright, and unauthorised use thus subject to a copyright infringement action.

If in doubt, the prudent course is thus not to use logos.

Makes sense, if the brand logo is used it could 'suggest' you are an authorised reseller or agent for the brand. So to be safe it's best just to type the name as the product description?

I would be interested to know your general opinion, and in line with the OP question, based on the Tesco/Levi case is this different from an Independant/Tesco case, so the Independant is selling Tesco branded goods rather than manufacturers branded goods.

As a retailer do they have any additional rights to their brand compared to a manufacturer who supplies multiple retailers?

Does it make any difference? OldEagleEye suggests this would make the goods second hand? Second hand is generally considered to mean used. If the items are unused, such as a seal hasn't been broken, labels not removed. Can I sell tesco own brand goods as a legal grey market product? Assuming I had a full disclaimer that I had no association with Tesco and any warranty offered was my own?

 

[oldeagleeye]

If you buy the goods ( in other words complete the transaction ) to sell on or otherwise they will still be classed as second hand. You needn't actually use the item. Many mainstream car dealers for example use this ploy so as to offer discounts by registering the car. In this case the vehicle may still have a warranty but whoever buys it will be classed as the 2nd owner.

Now you can dress that up however you want Demo Model Pre-resitered etc the fact is you have to make it clear to any subsequent purchaser that this is not the 1st transaction.

Moving on to logo's - trademarks etc a similar situtaion applies and a good example are those catalogue returns. Littlewoods for example have their own brand and have a Home Cataloque too but when an order has been paid for by a custome it becomes secondhand. Now the item may not have been used. It may in fact just be the wrong colour - but even Littlewoods can't sell it as new again despite the fact it is their own brand.

This is why there is a huge market in catalogue returns and it is worth repeating that phrase 'catalogue returns' because that is all the retailers are allowed to use. They can NOT say Tesco or Littlewoods Catalogue Returns for example.

Now to sum all this up we can talk about what is legal. What is a grey areas or is actually illegal. It really doesn't matter. As I am sure Verymark would agree - it all depends on whether any small retailer is worth bothering with given the huge amount of paperwork involved and the cost or pursuing the matter.

Having said that even a small flea up a major retailers asre is going to drive them mad so be warned. I would keep Verymarks number if I were you OP.

 

[oldeagleeye]

If you buy the goods ( in other words complete the transaction ) to sell on or otherwise they will still be classed as second hand. You needn't actually use the item. Many mainstream car dealers for example use this ploy so as to offer discounts by registering the car. In this case the vehicle may still have a warranty but whoever buys it will be classed as the 2nd owner.

Now you can dress that up however you want Demo Model Pre-resitered etc the fact is you have to make it clear to any subsequent purchaser that this is not the 1st transaction.

Moving on to logo's - trademarks etc a similar situtaion applies and a good example are those catalogue returns. Littlewoods for example have their own brand and have a Home Cataloque too but when an order has been paid for by a custome it becomes secondhand. Now the item may not have been used. It may in fact just be the wrong colour - but even Littlewoods can't sell it as new again despite the fact it is their own brand.

This is why there is a huge market in catalogue returns and it is worth repeating that phrase 'catalogue returns' because that is all the retailers are allowed to use. They can NOT say Tesco or Littlewoods Catalogue Returns for example.

Now to sum all this up we can talk about what is legal. What is a grey areas or is actually illegal. It really doesn't matter. As I am sure Verymark would agree - it all depends on whether any small retailer is worth bothering with given the huge amount of paperwork involved and the cost or pursuing the matter.

Having said that even a small flea up a major retailers asre is going to drive them mad so be warned. I would keep Verymarks number if I were you OP.

 

[FreelanceSoftwareDeveloper]

So it comes down to the fact that if bought in a supermarket or on the high street then you are 'a consumer', therefore I guess when the transaction is complete you are deemed to have consumed the goods. Regardless of whether you ate it, wore it or left it untouched you cannot legally resell the item through your business as brand new.

If you go to a cash and carry or wholesaler then the transaction is business to business and you have agreed the terms for resale. In the Tesco/Levi's case I guess they found an EU supplier prepared supply the goods for resale in the UK, the grey area being Levi's haven't authorised Tesco to sell in the UK but their supplier effectively has.

So if your buying a few branded items (Nike, Adidas) or special offer video games to resell it will be very hard for anyone to prove they have not been obtained via a wholesaler.

If the OP though wishes to buy high street names, like Topshop, River Island it is very clear where they came from and if advertised as new a simple letter from the retailer to trading standards might be all they need to do.

 

[oldeagleeye]

That about sums it Matt. Nice one.

Robert

 

[Simon12]

What about this example:
Company A places a trade order for 100 laptops with an autherised HP dealer in the EU, I think its safe to assume he can resell them as new as it was a trade order though an aurtherised channel. If he then resells 5 of them to an independant shop can they sell them on as new? Them if the indendent shop buys more HP laptops from PC world in a sale can they only sell them as second hand?

 

[Chris Ashdown]

Robert I can understand your logic, but consider the littlewoods returns a red herring, possibly a safety measure by them as they have no idea of what has happened to the goods since being sold.

Same with the cars, the garage pre registered them for its own gain and is not in a position to change the reg docs so must sell as pre reg

Please tell me where in law it states you can only sell as new from purchases from wholesellers of the like, I understand the description of new is unused and no other restrictions apply

 

[oldeagleeye]

You all seem to be missing a point here. On the face of it the OP is suggesting that he can get a possible 10% less than retail discount. Even if he could sell as new he couldn't compete with genuine retailers who could probably negociate volume discounts.

I rather suspect his intention then is to pass of at law by buting a few genuine products and the selling counterfeit.

 

[FreelanceSoftwareDeveloper]

I think it is a strange request, I don't see how you could run a business selling high street brands at the same price from another company, if you get them only 10% cheaper you can't undercut them. It's not clear how they get a discount either but that's I expect irrelevant. I wouldn't trust a company offering River Island jeans and a Topman shirt as it's obvious they got it cheaper from them so they are cheating me.

It's possible they want to sell some unbranded items such as accessories but wish to use high street names alongside to increase their credibility and fill the catalogue. Or as you say it's a scam.

The question though is about the legality of reselling when you are not directly authorised by the brand. We should be assuming goods are sourced and bought legitimately and are genuine, either from wholesale or retail sources.

My interest isn't related to selling high street brands but the legality of buying brand new goods from supermarkets and selling as new in my own business. To give a real example I saw a Draper 5m tape measure in Asda, 75p. In B&Q a similar item probably £3. So as a tool supplier i'm comparing to B&Q and the like, not ASDA. I could go buy a load of these and sell them on my site at £1.95.

I know a lot of people do it with video games. The buying power of the supermarkets means they can often provide better pricing than a wholesaler to a smaller trader. And 30-days no questions asked sale or return

 

[Mark Aldridge]

I've been on various forums and notice some people get a bit shirty at others, at times. To paraphrase Michael Winner "Calm down dears, it's only commercial!" Happy Christmas and New Year to all other UKBF correspondents
Mark

 

[VeryMark]

The question of what is considered to be "new" in law may in fact vary according to the particular circumstances of the case as to what is understood in the marketplace concerned - it might be "unused" in one case and "not second-hand" in another.

Certainly, "new" in the case of motor cars is not exactly the same as "new" in the case of Mars Bars.

As to reselling or the sale of parallel imports (aka "grey goods"), the point to be sharply aware of is that we now in law have a "Fortress EU" situation and anything imported directly from outside the EU without the producer's consent amounts to trade mark infringement - and anyone reselling those goods imported directly from outside the UK without the producer's consent would also be liable.

As to whether someone reselling e.g. a supermarket's own brand products would be in a different position than someone reselling the leading brand, the answer is that, whilst the law would be the same, the different circumstances and facts involved might well produce a different answer in practice.

This highlights again the need to include in your T's & C's an indemnity from all your suppliers that the goods you buy may be legally used and/or resold as intended.