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  • Writer's pictureJoe Kovacs


Updated: May 22, 2022

First Sale Doctrine vs. Material Difference

Unauthorized sellers love to stake their flag on the “bedrock” that First Sale Doctrine shields them against trademark infringement claims and protects their right to sell other brand’s goods. Increasingly, these sellers are finding themselves in quicksand when they try to establish their “rights” in court under this legal premise. Enter the brand hero here—Material Difference.

Otter Products, LLC, et al. v. Triplenet Pricing, Inc

Just this year the court sided in favor of Otter Products, LLC in a case against unauthorized reseller, Triplenet Pricing, Inc. The indestructible case company proved to not only be a formidable opponent against clumsy electronic owners, but were able to destroy Triplenet Pricing’s claims of having a right to sell the company’s goods under the First Sale Doctrine. Otterbox successfully established their Material Difference from Triplenet through their warranty program, which is only provided through authorized retail channels and sellers.

According to an article by the National Law Review, “It provides a warranty for products purchased directly from it or authorized sellers. Without authorization and so without Otter’s warranty protection, Triplenet sold products bearing Otter’s trademarks on the internet including on Amazon. In its Amazon listings for Otter branded products, however, Triplenet indicated that purchases included an ‘OtterBox limited lifetime warranty.’”

And therein lies Otterbox’s victory. Triplenet was misrepresenting their products to consumers as genuine, when in fact they are not authorized for Otter Products warranty coverage. Not only did the products sold by the unauthorized reseller no longer have a warranty, they also fell outside of Otterbox’s quality control program making the products potentially defective. The brand won on many counts against the reseller including trademark infringement and false advertising.

(Our imaginary judge’s reaction to Triplenet’s counterclaims that it did not infringe Otter’s trademarks and further alleged tortious interference with contract, intentional interference with prospective economic advantage, and deceptive and unfair trade practices against Otterbox—which they did not win.)

Considering this court’s ruling that the products sold by Triplenet were ingenuine because of the material difference and quality control exceptions to the First Sale Doctrine, this ruling can provide a framework for future actions by brands seeking to maintain control of eCommerce marketplaces. If you’d like to learn more about First Sale Doctrine and Material Difference we have an in-depth discussion in our Brand Protection Guide.

Our team are pros at protecting brands through this legal avenue and have the track record to prove that it works—not only to protect you in court, but by proactively monitoring for unauthorized sellers and MAP violators, our enforcement strategies actually help keep you out of the courtroom! If you’d like help protecting your brand, contact us!

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