Is It Trademark Infringement To Resell A Product You Legally Bought?
from the here-we-go-again... dept
The details of the case are pretty interesting. Basically, Mary Kay requires its "independent" distributors buy a certain amount of product every month to sell -- and the amount required is often a lot more than they can reasonably expect to sell. So, one former Mary Kay distributor set up a pretty good business in buying the "remnant" inventory from others at lower prices (better than being stuck with it completely) and then reselling it online. It's basically arbitraging the inefficiencies set up by Mary Kay's ridiculous system that pushes excess product onto its distributors.
But, of course, Mary Kay doesn't like any of this (despite the fact that it still gets paid for its product) -- and, in theory it should have no case due to the always popular first sale doctrine (i.e., you can resell stuff you bought). Except, Mary Kay is trying to get around this by claiming that the online seller's goods are "materially different" and thus first sale doesn't apply. Why are the products materially different? Apparently, they're old, expired and not supported any more -- which doesn't necessarily seem to be "materially different," but perhaps a judge will find otherwise.