Is Reselling A Shampoo Bottle Copyright Infringement?

from the welcome-to-the-ins-and-outs-of-copyright-law dept

A couple years ago, we wrote about a case that involved the question of whether reselling a legally purchased shampoo bottle was illegal. Basically, the shampoo company only sold to authorized resellers, who sold them to hair dressers, one of whom sold them to a woman who put them up on eBay. The shampoo company claimed that this listing infringed on their rights. It appears that a very similar case is now going on, again involving the same basic fact pattern (shampoo company sells to authorized resellers, who sell to salons — then another company buys the shampoo from the salon and tries to resell it online). While the court seems to have correctly noted that there’s no trademark infringement in how the seller advertised the shampoo (noting that using the terms honestly, rather than to confuse, shouldn’t be seen as trademark infringement), it seems to have totally flubbed the copyright side of the claim, in suggesting that posting photos of the bottle (even though those photos were taken by the seller) potentially may have violated the copyrights of the shampoo company. The seller argued that it was fair use, and the court wasn’t convinced, using a somewhat questionable reading of the “four factors” test of fair use. However, what’s more important, as William Patry points out in the link above, this shouldn’t even require a fair use defense, as copyright law states:

“In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.”

That would seem to suggest that it’s not a copyright violation to sell a shampoo bottle. The lawyer who made the fair use defense for the seller defended his argument noting that the court, for no clear reason, required all briefs to be under 17-pages and in a large font. That meant that the lawyers had to choose their arguments carefully, and focused on the fair use argument, because they had won an almost identical case on that argument at an earlier date.

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Comments on “Is Reselling A Shampoo Bottle Copyright Infringement?”

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MLS (profile) says:

Patry Comments

What Mr. Patry notes is how the case should have been decided in favor or the eBay seller. My only addition to his comments is that “fair use” arises when an infringement has taken place, and then the “fair use” rules are relied upon as a defense to determine if the infringement falls within those acts covered by “fair use”.

What the attorneys and the court should likely have done is ignore “fair use” altogether as being inapplicable since, as Mr. Patry correctly notes, a separate section of copyright law governs.

Eric says:

What exactly is the shampoo company losing??

What exactly is the shampoo company losing here? Whether they sell to the distirbutor. Then to the Salon. Then to the buyer whos sells on Ebay. Then end is the same if the person who bought on Ebay had bought from a salon. In terms of numbers sold to the shampoo company would have been the same. It is just went one link more down the chain. I think there would reason for this if the Distributor had sold on Ebay and cut out the salon.

some old guy says:

Re: What exactly is the shampoo company losing??

Control. By being available “only” in their partners business locations, they mutually drive “traffic” to each other. Of course, the notion that customers would be happy being able to get their favorite shampoo only at the expensive salon, and not at their favorite grocery store is fairly alienating to them, but these same consumers don’t get alienated when they don’t realize its going on.

Hank (user link) says:


I agree that it is not infringement as the photo was used to advertise a product for sale which is clearly covered in copyright law as quoted above.

Ok, what I really want to know is; what price was it being sold for on eBay? With a 4 step distribution the margins are going to get slim pretty quick but they could probably sell under suggested retail.
Maybe the shampoo company has a MAP (minimum advertised price) policy and the eBay seller was listing the product for below MAP. Very hard to stop this from happening as the final seller is so many levels away from the manufacturer. They could be trying the copyright angle to stopping them from selling for less than MAP, which could devalue their product on the market.

If you have an MAP policy you have to do everything in your power to enforce it, otherwise your product will be priced out of the market very quickly, still the wrong angle to take though (if that’s the case).

Rose M. Welch says:

“Control. By being available “only” in their partners business locations, they mutually drive “traffic” to each other.”

But they’ve already gotten their traffic and the profit that they wanted… The people who are buying this stuff are most likely people who can’t get it in thier area, since they’re willing to pay on top of whatever the seller purchased them for and shipping. The shampoo company should invest money in expanding their vendor geographics, not in suing resellers.

Dazed and Confused says:


If this holds up then anyone on ebay or anywhere selling anything that they didn’t make themselves is infringement. I bought my car from the dealer I own it I take a picture I post it on ebay to sell it and now dodge can sue me for infringment. This is the most riiculous thing I’ve ever heard. Something needs to be changed about this system because it sucks!3

Tony (user link) says:

Re: sooo.......

“If this holds up then anyone on ebay or anywhere selling anything that they didn’t make themselves is infringement.”

Which is why I sort of hope it IS held up. There is no widespread public outrage at the ridiculousness of these copyright/patent/trademark lawsuits right now – it’s only the tech-geeks who are really vocal. But something like this would hit the average consumer quite hard.

Even offline – Imagine not being able to put a picture of your car in Auto Trader?

The backlash would be quite amusing to watch.

Ron Larson (profile) says:

This is not Copyright Infringement

I am not a lawyer. But I fail to see this as a copyright infringement.

It is not a trademark infringement. They are not selling another product pretending to be this.

They are not making a clone or copy of this product. They are selling the real item.

What the have is failure to control their distribution channel. I don’t know what agreements they have with their customers. At best, they have a customer who has violated the terms of an agreement (if there is one) by reselling the product. If the customer signed an agreement not to resell the product, then THEY are liable. Not the merchant who sold the product to the consumer.

Nick Dynice (profile) says:

some old guy and Ron Larsen are right. This is an extreme abuse of copyright and trademark law, and this action is actually and violation of the the First-sale doctrine.

Seller of goods want to control the distribution of their products, but they really have no legal rights to do this unless, as Ron suggested, there was a legal contract that the seller would not resell. But even then, the agreement is worthless. The last thing the shampoo company wants to do is go after their vendor. This would scare off their potential vendors.

The shampoo companies lawyers are being asked to stretch copyright and trademarks to suite their desire to control the market of their goods.

This is the notion of an “Authorized Dealer.” This means that the party selling to the consumer has been authorized by the manufacturer/official sales channel. Some manufacturers do a really poor job of policing their salespeople, well because, they want to make a sale. The sales departments are seen gods; more important than the marketing departments. The marketing departments wants to make sure their products are presented in a specific way (no legal right to this, by the way), so they sometimes have a problem with who the sales department sells to. Trademark does not touch this, because the sales department knows who they are selling to (or, at least the good, responsible ones do). If the goods are authentic, trademark has not been violated. Salespeople are intellectually dishonest when a sale occurs to a vendor they knowingly sell to (who may or may not resell) and lie by saying that the item is a knock-off or forgery. I have seen this happen in the consumer electronics business.

Bad market control decisions does not equal trademark infringement, especially if the goods are authentic.

John Stottlemire (user link) says:

What did he say?

I’m confused. I’ve read the docket and downloaded every document associated with this case from PACER. 2:05-cv-03699-JAT

First, Local Rules of Civil Procedure for the District of Arizona require all pleadings be typed in a fixed font not less than 10 pitch or proportional font, not less than 13 point.

Second, Local Rules of Civil Procedure for the District of Arizona allow responsive pleadings to be 17 pages, however, an administrative motion can be filed by any attorney requesting this limit be increased. Such a motion was not filed in this case by the attorney who claims his hands were tied by the limitations set in the Local Rules of Civil Procedure. (oh, and by the way, if he would have asked for an increase in the limit and was denied, this would have been grounds for appeal, especially in a complicated case which includes copyright law and trademark law issues… he simply did not ask.)

I have no problems with an attorney trying to explain why he lost, but lets get real, did he actually do everything that he could have done?

-john stottlemire

Beta says:

A brief should be brief.

Apart from constitutional amendments, I haven’t seen a legal document written in the last hundred years that wasn’t loaded with unneccessary boilerplate. Unless there’s a hidden channel which only lawyers can read (perhaps I should ask the court steganographer), I find it hard to believe that the “fair use” argument could take up more than one page of well-written English. Allowing another page for preliminaries, that leaves, um… fifteen pages for other arguments.

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