Is Reselling Your Shampoo Bottle Online Illegal?
from the so-says-one-company dept
Greg Beck writes in to let us know about the latest ridiculous legal situation. A woman who bought a bottle of shampoo at a store then attempted to resell it on eBay. She took a photo of the bottle she bought and used that in her eBay listing. The company proceeded to demand that she take down the listing completely. They appear to have two separate (but equally questionable) reasons for this. First, they claim that the photo is copyright infringement. That's a tough one to support since the woman took the photograph herself of the bottle that she bought and which she owns (yes, owns). The company suggests that it owns the copyright on the actual bottle with their label, which would mean any photograph of their shampoo bottle would represent infringement. As Beck shows in his blog post, this is an odd interpretation of copyright law. The bottle, by itself, is not copyrightable and even if it were, the photograph would clearly fall under fair use protections. The second complaint from the company is that they have distributor agreements that say only certified resellers can sell their product. However, that's a contractual agreement between the company and its distributors. This woman has no contractual relationship with the shampoo company and thus cannot be violating any contract. On top of that, there is the right of first sale. As the legal owner of the shampoo bottle, the woman has absolutely every right to then go and resell it however she wants at whatever price she wants. The company has sold it, and no longer has any control over it. The woman has apparently decided to ignore the multiple threats from the company, so it's not clear how they're going to respond next. However, this is yet another example of a company focusing so much on control that they forget that once they've sold something, it's no longer theirs.
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Truly Bizarre
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Re: Truly Bizarre
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Partly this was an attempt to stop knock-offs of designer items from being sold, but mostly this was initiated back when eBay decided to move more towards corporate sales than sales from individuals.
Just one of the moves that made me stop selling on eBay years ago, even though I didn't personally sell any of the items they prohibited.
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I have...
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Re: I have...
I don't see eBay pulling all the cars off from its auto listings... ebay is getting dummer all the time. I guess once you're a young punk and you make you 20 mill personal yearly income you can then squish those that got you there...
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Smells like microsoft
It sells software, then tries to C&D resellers into oblivion for daring to resell it.
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Microsoft doesn't sell software
Technically? No. Microsoft sells a license. If you read it, you will understand that they explicitly did not sell you the software. They sold you a license to use the software -- which doesn't even come with media holding the software you have the license for (unless of course you pay extra for it).
Is that a good thing? That's a different subject.
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Re: Microsoft doesn't sell software
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Re: Re: Microsoft doesn't sell software
Umm.. yes. It's true. Go read the license. And how does the fact that this being true have anything to do with what M$ "should" be doing with their software sales? Pretty pointless point there Arden.
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Re: Microsoft doesn't sell software
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Double-take
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Re: Smells like microsoft
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Which one
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One Use, not tell?
Did she use the Shampoo first, if so did she say?
is it still sealed, if it was bought that way?
What is the Net Weight/ Gross Weight?
Could this be an issue for the FDA?
What if the bottle were to leak?
to solve the problem:
have manufacturer put contracts on every item you buy.
Buy purchasing this product you agree to...
Everything will be like buying software.
Lots of contracts that nobody reads.
She could become a shampoo pirate.
Why not! lets put contracts on everything.
Contract for reading this posting:
You agree not to spam me.
You will not claim this posting as your own.
You agree to give full credit for this posting to me.
...
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Re: One Use, not tell?
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One Use, not tell?
Did she use the Shampoo first, if so did she say?
is it still sealed, if it was bought that way?
What is the Net Weight/ Gross Weight?
Could this be an issue for the FDA?
What if the bottle were to leak?
to solve the problem:
have manufacturer put contracts on every item you buy.
Buy purchasing this product you agree to...
Everything will be like buying software.
Lots of contracts that nobody reads.
She could become a shampoo pirate.
Why not! lets put contracts on everything.
Contract for reading this posting:
You agree not to spam me.
You will not claim this posting as your own.
You agree to give full credit for this posting to me.
...
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Saving the auto industry
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Re:
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Spelling
Stupid people.
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Re: Spelling
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Re: Re: Spelling
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Re: Spelling
author's note: Betterfication is my best Bushism to date. rofl!
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Re: use of the English language
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Re: Re: use of the English language
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Re: Re: Re: use of the English language
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Utterly
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Help them to help themselves.
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Re: Help them to help themselves.
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Re: Help them to help themselves.
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Re: Help them to help themselves.
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Beck Shampoo
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camera phones in the shampoo isle
heads must explode at shampoo companies everywhere at that thought...
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Don't buy
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Re: Don't buy
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Re: Don't buy
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wtf
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shampoo
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Used cars?
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eBay Sucks for Allowing This
Recent litigation from companies such as Tiffany, Vuitton etc. have only increased the problems. Many eBay customers (eBay Sellers) are reporting that eBay has started pulling high end items from auction, items like Rolex watches and Tiffany jewelry. Many times the sellers actually bought the merchandise themselves and have the Tiffany store receipts to prove it.
The funny thing is that eBay is cracking down on copyright law and intellectual property rights offenders, yet eBay Inc. may be one of the biggest offenders in the world. eBay is still in the middle of a full blown supreme court hosted trial over technology that eBay more-or-less admits that it stole from MercExchange and have implied that MercExchange doesn't deserve to have the patents, simply because they weren't using the technology and eBay was (after stealing it). They are also involved with a couple of other copyright lawsuits dealing with technology that eBay and/or Skype stole.
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Vague
I'd bet there's a 50/50 chance that this is happening...and when their "private investigator" discovers her source it might be the end of the story.
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Re: Vague
"Professional use" my eye! It's all marketing hype and snazzy packaging to justify higher prices. Retailers are in on the scam.
The manufacturer doesn't give a rip about this gal, and they know they can't win in a courtroom on this one. They just want the word out that they will take action so they can add that to their schitck.
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Re: Vague
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Re: Vague
As someone who has worked with companies like SmartBargains.com, who has had to be very CAREFUL about what brands they use to advertise a sale with, I know its something that matters. A lot of times you see commercials where they'll advertise "brand name" *somethings* at wholesale prices. They'll say "we can't show you the name, but this is a great X product. The initials are H.S. *wink*."
Companies are concerned, and rightly so, about brand dilution. Powersellers on eBay are recognizing huge profits on brand-name merchandise with level-competition being a keyword away, and this woman is just another person caught in the frenzy of brands not wanting their retail customers (shop owners) to lose sales to organized power-resellers on Internet auction sites.
I AIN'T saying its right... but that's where its coming from. It's not crazy new fangled weirdness, its age old, just seeing the light of day weirdness.
Hey... for something else amusing... you know how Disney throws its flicks into "the vault" to control price surges on their old movies (like "the Lil Mermaid")? If you go searching for a new copy of Snow White online, you're unlikely to find one from an authorised reseller... but if you search on Amazon.com, Amazon immediately and automatically hooks you up with third-party resellers... completely getting around Disney's "vault" system. I was laughing about that the other day. Must keep Disney execs awake all night thinking about it.
Disney: We're sticking this in the vault if you don't buy now!
Customer: So what?
Disney: SHIT...taki mushrooms!
And the war rolls on... manufacture controls on selling is a genie out of its bottle. Not really going back in, but the fight isn't going away. The whole "educational software" and "OEM" struggle in the software market is painful to watch though.
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umm ok
What Is Copyright
Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
*
To reproduce the work in copies or phonorecords;
*
To prepare derivative works based upon the work;
*
To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
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To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
*
To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
*
In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40, Copyright Registration for Works of the Visual Arts.
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.
*Note: Sound recordings are defined in the law as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which works of authorship are embodied. The word “phonorecord” includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as other formats.
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Bzzzt! Incorrect
Hoeppner, clicking a button called "I agree" is NOT agreeing to a contract. Furthermore, maybe I didn't even install the software? Do I still agree with this "contract" if the item is still in the box, sealed and never opened?
Of course not. But explain that to ebay after Microsoft pulled a few of my auctions....
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Abolish the DMCA
When the Democrats take over Congress this November write your Democratic Congressan or Congresswoman and let them know you want the DMCA Abolished.
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copyright claims...
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Re: copyright claims...
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Re: Re: copyright claims...
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Re: Re: copyright claims...
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Re: copyright claims...
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Re: Re: copyright claims...
So say for example you are a movie star. Your product is your image. If someone took an advertisement you posed for and altered it to make it seem that you were advertising something that you were not, you can sue for misappropriation of your image. Companies, like famous individuals have the ability to protect their goods to the extent that they may be improperly appropriated and used in ways that they were not initally intended to be.
If you are thinking about tabloid photos right now, let me just say that, barring enthical conduct by overzealous paparazzi, those are photos of famous people actually doing what the picture shows. I am talking about possibly altering the item. You have the ability to control your advertisements.
And, looking at your "crap" example...that could be problematic if it were being used as an ad for something, like a competitor product. However, if someone just wanted to crap on your product for the fun of it and make a photographic record, that would not be illegal...that would be art.
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Re: copyright claims...
Companies are beginning to be like babies they bitch and whine, instead of the government telling them to shut up the consumers are told to bear their burden and we take it. How many more 'injustices' can these companies find before they knock on your door demanding money from you?
You say that these companies have a 'right' to control how your product is perceived? Really? I would like you to reply to my comment and explain this. To begin perception is just your opinion of something. So if your perception of a product or a song on the radio is controlled by the license holder or owner then you should not be allowed to perceive the song as not good, right? As you state this is an important and should be protected by these companies. At what point should you be allowed to say or think that the qualities of one product differ from what is advertised ?
If it is truly their right to your perception of their product then why should we be given a choice on brand a,b,c? Really, do you have a right to choose as a consumer? Is your choice based on how you perceive the product?
Basically I am just curious how strong you support your convictions. Do you really believe these companies have these rights? If you make something and sell it off for a price do you have the right to determine the products life after you made money from it? What does it really mean to pay for something? What should we really get when you give money in exchange?
I am looking forward to your enlightenment...
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Re: Re: copyright claims...
What the company can protect is how their own affirmative advertisements and advertising efforts are appropriated by others. A shampoo bottle is more than a container. Its label is an advertisement. Its contents or bottle could be patented. Its name or logo could have trademark protection. If those things are altered or or appropriated and used in commerce, it is probably within the company's right to control those uses under Title 17. However, you could take any portions of the product that are not protectable and make your own advertisement with them and use that as an image in conjunction with your criticism or bid for sale.
The right of the company is not to "determine the product's life" after it is sold, it is to determine how your products or advertisements are used to affect future sales of your goods. This does not mean there cannot be criticism of something, or that you can't like it, or that you shouldn't have a choice between differing items. The focus is on how you use the company's intellectual property when you decide to affect commerce with it.
As far as the truth in advertising problem, I'm not as certain. I'm certain there is statutory or common law guidance on when the qualities of a product impermissibly differ from what is advertised. Though it is probably not a bright line rule.
I hope this explains my argument to some extent. I like the discussion. Keep it coming.
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Re: copyright claims...
As for using fair use, Techdirt seems to like to throw around the idea that fair use is clearly covers the situation. One, fair use is a defense to infringement. During litigation, the defendant bears the burden on showing fair use. As for being clearly covered under the fair use doctrine, 17 USC 107 states:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
I do not see a situation where fair use is covered. Techdirt seems to think fair use = a little bit of infringement and this is not the case.
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Re: Re: copyright claims...
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Re: Re: Re: copyright claims...
Maybe it has something to do with the fact that it a used good. If I have time, I'll look into some case law and try to find an answer. It's a good question.
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Re: Re: copyright claims...
I own a home based business. Doing very well with it.
Our products are being sold on the Internet and Ebay at cost and below cost. Our products our stolen everyday while being shipped.
Because they are not using company photos to promote the products on the internet, there is no legal action that the company can take.
This will put alot of the people who are contracted to sell for this company out of business.
Including me.
There must be a law to protect us, dont you agree?
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Re: Re: Re: copyright claims...
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Re: copyright claims...
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Copyright
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Wear or see and
Hear on TV
Is a product
Begging for your
Fatass dirty
Dollar"
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Re:
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design patent..
There should be plenty of precedents on the subject available online.
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Ummm...okay
Seriously, somebody needs to start eBay Anonymous for these people.
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Re: Ummm...okay
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B.S. happens to more then shampoo sellers
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Shampoo
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Shampoo
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The Ultimate "Solution"?
Problem is, both government and industry will make it very very difficult to buy the ingredients.
This is because only a corporation or a very smart person has the sense to mix shampoo without poisoning themselves and others. Further, unless shampoo is properly colored, scented, and surrounded by a bona fide well-designed container, it can be extremely dangerous to our economy.
After all, stupid people are a national treasure and must be protected from ingredients. And initiative.
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Shampoo
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Re: Shampoo
It could be that although they have the right, companies just don't enforce it all the time. For example, it is illegal to hang things from your rearview mirror when the car is in motion (even those handicapped signs you get at the DMV...go figure). However, cops don't generally enforce this law. But it is often used as a basis for a stop when there is some other reason the cop wants to pull you over.
I'm curious as to whether the company got after this woman for a one bottle resale or whether she is doing something more. Suits aren't generally filed over one bottle of shampoo. The original article says she planned to "make some money selling salon hair care products online." Sounds like a business. While this is probably legal, I still wonder about the photograph. The bottle is probably no longer protected, but the label might be copyrighted and the name could be trademarked.
The claims as outlined in the original article do seem to go a little far, but I dont' think 17 USC 113(c) solves the problem. While the bottle might be deemed a useful article, the label probably is not.
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ridiculous legal situation
Additionally, EBAY in general is so rife with problems no educated person still sells or shops there. Thank God for EBAY there is an endless supply of stupid people to keep them in business.
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Re: ridiculous legal situation
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empty bottle for sale...
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Shampoo for sale
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wtf
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Re: wtf
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Shampoo for sale...
The shampoo company sold their product, end of story for them. They should only be concerned (and happy) with the fact that someone bought their product. Resellers (whoever that happens to be) purchase at a discount and RESELL. They sign the contract, not this lady who happened to buy it off the shelf from the reseller.
Bottom line is this lady spent money to buy a product form a seller. With the exchange of money, the seller doesn't have the right to then tell this lady what she can or can't do with her product. If she wants to sell it,let her, if she wants to bury it in the back yard, so be it. If she wants to bath her dog in it, then god forbid we get in her way.
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The Demise of Shampoo
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I have an idea!
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I'm no expert
Now, I may be wrong, but to be actually doing something wrong, she'd have to change the name of the shampoo to something close enough to the actual name of the shampoo that it would confuse the "average" consumor (Trademark) and/or ditch the bottle completely and claim it's her own home-made shampoo and sell it in a different bottle (Copywrite).
Am I wrong?
As for whoever posted the "english language" posts-- perhaps your country should sue our country for copywrite infringement-- and you should stop being a troll.
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Re: I'm no expert
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Ban Aquage products
STOP USING AQUAGE products NOW
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For Real?
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EBay not just fopr idiots
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Reasonable expectations
The manufacturer is LESS concerned with the fact that Jaime Olson will make $1.00 and MORE concerned with the fact that she may unknowingly compromise the image of their company. This is true for any Name brand -- There should be a reasonable expectation of a manufacturer of any product to control its own image.
Also, there is a big difference between reselling topical items (i.e. Shampoo, lotions, beverages, makeup, etc.) and inanimate objects such as toys, pet bed, cars, computer software. You'd have to be a special kind of crazy to buy a shampoo from an unknown, possible unreputable person on the internet. SERIOUSLY!
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hello
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Rubbish
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Aquage
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Reselling of products online
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Question about this
I have a question maybe someone could answer. IF, this woman purchased the shampoo, put it in her own bottle with her own name, could she resell the product under her own brand name without the manufacturerer's permission?
If so, could she do so for a use other than hair shampoo? Say it was also good for removing pet stains from carpets for instance? Could she buy it and repackage it for this other use?
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VERO dept. at E-bay
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You should Not be able to sell professional products without a license or a store front. Just as you would like to make a profit so do the salon owners that pay for their licenses their business expenses, Payroll , payroll taxes and their education Fair is Fair!!
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Re:
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re: Protecting the Professionals..
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can one buy bulk and then relabel repackage it and
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Re: can one buy bulk and then relabel repackage it
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resale
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I have been through this before
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Hmm
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Aquage Sucks
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Turn the table
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Dirty Company
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