The secondary market has a long history and is loved by many people. But has resale of brand-name goods infringed trademark rights? Let’s talk about this!
First, we should determine whether the source of the good is legal. In other words, the brand-name good to be resold is genuine or a legally manufactured good. Such as: buying genuine goods from overseas and reselling them domestic. This is what we often refer to as "parallel imports". In the current trademark law, trading of parallel imports isn't illegal. Because the trademark owner has exhausted the "trademark right" when the goods entered the market. This is calls "Exhaustion Doctrine" or "First Sale Doctrine" in law. Therefore, the trademark owner shall not claim infringement by second-hand traders.
↑↑ "Exhaustion Doctrine" of trademark right refers to the trademark rights attached to a single good, which has been exhausted at the time when the consumer completes the transaction. Doesn't mean that trademark right was authorized or transferred to consumers.
Taiwan’s trademark law system adopts the "International exhaustion doctrine". The preceding paragraph of Article 36, Item 2 of the Taiwan Trademark Law stipulates that goods was imported from abroad. And used the trademark with the permission of the trademark owner or authorized person.
It shall not constitute infringement of trademark rights.
Legal "parallel input" wouldn't infringement. But when selling second-hand or brand-name new goods on the Internet, you need to be careful not to step on the mine named counterfeit.
According to Article 71 of the Taiwan Trademark Law, there are the following four ways of calculating damages for the sale of counterfeit goods:
1. The trademark owner proves the damage and loss of interest and demands full compensation.
2. The income from selling counterfeit goods.
3. According to the quantity of counterfeit goods seized, the compensation range shall be less than 1500 times of the unit price sold.
4. The amount of compensation for damage is calculated on the basis of the royalties authorized by the trademark owner to be used by others.
In the early years, there was a French company: HERMES accused Taiwan Hermes of the counter at the Regent Hotel in Taipei. Its resigned sales specialist sells counterfeit Birkin bags purchased from abroad. As a result, the resigned employee was convicted by the Intellectual Property Court of Fraud for money Offense and sentenced to six months in prison. And based on the average unit sale price of four Birkin bags: NTD 512 thousand, multiplied by the calculation standard of the minimum legal damage amount of 500 times at that time. The defendant was ordered to pay a high compensation: NTD 250 million. After that time, there was a French company: LV sued second-hand boutique traders for selling counterfeit goods illegally that violated trademark right related to them.
In these cases, the identification report of the plaintiff (the trademark owner) was almost used. That is to say, in identifying the authenticity of second-hand brand-name goods, there is still a lack of independent and reliable third-party organizations and complete related mechanisms. Therefore, at present, when reselling second-hand or brand-name new goods on Internet must confirm the source carefully. At the same time, pay attention to the following two points:
1. Use reasonable text to make a statement of the good. Do not remake the LOGO of its brand or download the LOGO directly from its official website and repost it on own store.
2. It's not allowed to download photos from the official website of the goods for use in own stores. Because these photos on the official website are protected by "Economic Rights".
To download unauthorized would violate copyright (Reproduction Rights).
Nowadays, online shopping/ Overseas purchasing broker/ live broadcast sales are daily. Everyone pays more and more attention to trademark rights. In addition to avoiding stepping on a mine named infringement of trademark, you must apply for trademark for your own brand. Don't know how to apply for trademark? Want to know if your brand name is distinctiveness? Pick up your phone and Intellectual Property Commissioners of Gold Keen will serve you immediately.
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