QUESTION
Will I get in trouble for selling Oakley's on my local Craigslist?
Asked on May 08th, 2013 on Patents - California
More details to this question:
I'm wanting to start selling these Oakley’s on my local craigslist but before I do I want to make sure this is legal? Here is my ad I want to use. "For sale sun glass case with a free pair of glasses. Both case and glasses are brand new never worn. Case was made in China. I assume no responsibility or warranty for the glasses. You are paying for the case."I never stated these were real or fake and that the persons are buying the case not the glasses. Can I get in trouble?
6 ANSWERS
Patent Law Attorney serving Huntsville, AL
at
Lanier Ford Shaver & Payne P.C.
Update Your Profile
You are probably all right to sell Oakley's that you have purchased in the ordinary chain of commerce as long as you do not infringe any patents, trademarks, or trade dress related to the Oakley product.
Answered on May 14th, 2013 at 10:11 PM
Intellectual Property Attorney serving South Jordan, UT
at
Pearson Butler
Update Your Profile
If they are fakes, you can get in trouble, even if you don't know they are fakes. The part about just selling the case and giving the glasses away for free doesn't really help you, since the glasses are still associated with a sale. If they are real and you can prove it (have receipt from an authorized distributor) than you should be just fine.
Answered on May 10th, 2013 at 10:54 AM
Oakley is a registered trademark. Selling a product that bears a counterfeit mark would be trademark infringement under federal law. In addition, it is possible that some Oakley sunglasses could be protected by utility patents and design patents. If that is the case, you might also be infringing upon Oakley's patents.
Answered on May 10th, 2013 at 6:22 AM
If the sunglasses you have are as it sounds, fake Oakleys, then you cannot "make use sell import or offer to sell" them without infringing any patents or trademarks out there. Obviously if you are selling these as a 1 time only 1 pair type of deal then none is going to come after you but if you bought a case and are trying to sell them 1 by 1 on craigslist or ebay - i would caution you against that. If the Oakly people found out and wanted to find out where the eventually came from in China, they would likely sue you in federal court. This would cost you tens of thousands and possibly hundreds of thousands to get out of the lawsuit. Proceed at your own risk. Please don't think for a min that if you sell the case and give the glasses away you can escape any type of liability. Its a very thinly veiled sale and besides the statute requires only that you "use" the glasses to be an infringer.
Answered on May 10th, 2013 at 6:15 AM
Appellate Litigation Attorney serving Boston, MA
at
Banner & Witcoff, Ltd.
Update Your Profile
You will likely get into trouble.
Answered on May 10th, 2013 at 6:14 AM
If you sell or distribute an item you have reason to believe may have counterfeit markings, the trademark owner can seek damages. In short, yes. ps- the charade of only selling a case would be unlikely to mitigate.
Answered on May 10th, 2013 at 6:05 AM