Reselling companies that focus on specific brands

[andrewquestion]

Hi,

First time poster and completely new to copyright matters, so I hope somebody is able to advise me here.

Increasingly I am seeing re-commerce companies set up to sell second-hand goods for a specific brand. For example, you might find a company that sells vintage clothing - but they only sell Champion sweatshirts.

They might call themselves 'The Champion Sweatshirt Shop'. Just as an example.

My question is this: when it comes to the resale of second-hand goods, is it lawful to have a website set up which specifically sells the goods of a particular brand?

For instance, the 'Champion' company above... They will need to mention Champion in the copy of their website, their page SEO, their social media channels, as their entire company is around the resale of Champion goods. They probably wouldn't need to use the Champion logo on their site.

If you look at a second hand clothing site like beyondretro - they use company logos on their homepage and sell goods belonging to that brand. But might get away with it because they're selling so many different brands. If they only sold Champion, would it be the same?

What do you think.... is brand-specific reselling like this lawful when the goods are second hand? Are there any things you'd research first? Would you include disclaimers on the site to say you're not affiliated with the brand? Looking forward to your replies, thank you.

[AndyJ]

Hi andrewquestion,

It is worth pointing out that there are no copyright implications raised by your question.

The question involves the use of trade marks in connection with the sale of second hand goods, and could possibly involve the tort of passing off, which applies where reputational and financial damage is caused by misrepresentation.

Using a brand's trade mark to re-sell a genuine product which has been made and originally sold by the brand owner is does nort infringe the trade mark. The purpose of a trade mark is to act as a reliable indicator to the buying public about the origin of the goods under consideration. So, as long as the clothing in this case is actually genuine 'Champion' apparel and is not being misrepresented in some way (for instance that they are brand new items when they are actually second-hand) then this is a legitimate use of a registerd trade mark, permitted by section 11 (2)(c) of the Trade Marks Act 1994. Furthermore it is perfectly permissible to use the trade name of the product or name of the manufacturer in advertising the sale of second hand goods (provided that they are genuine), as this merely provides a true description of the goods being offered for sale.

However the use of the word Champion, assuming it is a registered trade mark, in the name of second hand company would not be permitted by the section quoted above as that only applies to the goods themselves. By calling the company the Champion Sweatshirt Shop (as in your example) they would be directly infringing the Champion trade mark where that mark was registered in Class 25 (Clothing) and in particular for sweatshirts within Class 25. The immediate indication of the company name to the buying public would be that this was some sort of subsidiary of the Champion company, which had been set up to trade in (second hand) clothing of that brand. This is turn might imply a level of quality control or refurbishment of the clothing prior to sale to ensure it met the standards of the parent manufacturer. This would therefore fall foul of section 10 of the Trade Marks Act 1994, but could also lead to liability for the tort of passing off, and possibly even an offence under The Consumer Protection from Unfair Trading Regulations 2008.