Legal Question in Business Law in California

Re: Authorized vs unauthorized dealer internet sales

For most kinds of goods, under the first sale doctrine, called various things (e.g. restraint on alienation), the seller cannot control resales so long as it is clearly disclosed that the dealer is not an authorized dealer. However, some foreign jurisdictions nominally allow such restraints for some types of goods, and sometimes the warranty can be voided (although some states do not allow the warranty to be affected). I would need more information about the type of goods you are selling and the proposed foreign jurisdictions of sale.

Also, a practical concern can be litigation cost. Even if you are right on the law, a large manufacturer will sometimes sue anyway for in terrorem effect. Does the manufacturer have a history of litigation against "gray market" dealers?

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Re: Authorized vs unauthorized dealer internet sales

The manufacturer's claims against you seem to be based upon copyright and trademark law. First-sale doctrine may protect you as to the merchandise itself, but associated literature, logos, sales material, etc. might still be subject to the owner's control. If so, disclosure that you're not an authorized reseller may not be enough -- it would be like a bank robber admitting to the teller that he didn't have an account there.

These gray-market and unauthorized distribution resales have been litigated a lot in the last ten years or so, and there is a body of case law precedent that can be applied to your facts to determine what, if anything, the manufacturer can enjoin in your situation. The resellers have won a fair number of these cases based upon the preference for free trade and competition, but in some cases the manufacturers have prevailed, at least on some issues and practices.

The probable outcome in court is very fact-specific and you would need to go over your entire selling operation with an intellectual-property attorney in order to get a halfway reliable red, yellow or green light on various aspects of your business.