Legal Question in Intellectual Property in Ohio

As a Franchise Attorney I can tell you any manufacturer, including Victoria Secret, has a right to control who sells their branded merchandise. Doesn't matter that you bought it retail and are reselling. You need their permission to do that. Don't be surprised if you get a demand letter from their Brand Protection Dept. for a sizeable sum for unauthorized distribution and similar charges. A number of companies prowl eBay and CraigsList, then send out these letters. Consult with a good business or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

I'm compelled to differ with Mr. Murphy. While I agree that "a number of companies prowl eBay and CraigsList, then send out these letter," I disagree that "any manufacturer, including Victoria Secret, has a right to control who sell their branded merchandise." It has long been established in the United States that the doctrine of "exhaustion" of applies to sales of trademarked goods, akin to the "first sale doctrine" in copyright law. Once the manufacturer of a trademarked or copyrighted product places that product in commerce, such as by selling it to you, the manufacturer loses the right to control subsequent distribution, even though they still own the trademark or copyright.

There are limitations on this, but nothing in your statement of facts suggest that any of these apply. For example, Victoria's Secret might have a claim if you are selling used clothing as new, if you are misrepresenting a warranty that may apply only to purchases through authorized dealers, if you are altering the clothing, if you are passing off Victoria's secret clothing as your own company's, and so on. But if you are selling genuine Victoria's Secret branded clothing that Victoria's Secret itself sold, and no longer owns, and are truthfully indicating whether it is new or used, I don't see any valid basis for a claim on Victoria's Secret's part. Rather than consult a good business or franchise attorney, I suggest that you consult a trademark attorney -- my guess is that (unless other relevant facts you have not mentioned alter the equation) any trademark attorney will advise you that the allegation against you is baseless. (The fact that they want to police this by not selling to you suggests to me that they know their claim is baseless.) You might also want to talk to the attorney about whether the tactics being used against you amount to unfair trade practices in your state.

As for not permitting resale, I would be willing to bet that Victoria's Secret branded clothing regularly makes its way into the sales racks of Goodwill Industries and other "thrift store" retailers offering affordable used clothing. Let's see them try to go after them! ;-)