Contacted by manufacturer about our website

[RAWalker]

Unless and until you have been legally served with a cease and desist as required by the laws of your state it is just a legal bluff. It doesn't hurt them to make the phone call and ask if you comply they save time and money not needing to get an attorney involved.
However fair use does cover you using the trademarks to legally sell the equipment you already own. If they don't like it, give them the option to purchase the gear at your advertized price. That will cost them less than going through the legal motions.

 

[RJP]

However fair use does cover you using the trademarks to legally sell the equipment you already own.

Just to clarify, fair use doesn't apply to any/all uses of someone else's intellectual property. It only applies if you use them in good faith, and if you use them legally. (eg: you can't use logos, copyrighted images, etc, nor can you misappropriate their marks, misbrand items, or imply a non-existent relationship/endorsement between you and the mark holder.)

For example - and not saying this is a brand in question - but you could not use this image:

But could use something like this one:

You couldn't use this:

But you could say "Atomic Aquatics" in copy.

Etc, etc...

 

[chicagodiveguy]

RJP...
That made me laugh... for a different reason! (And no... that's not the brand giving me issues now) Last year I was selling some personal items on ebay and used a atomic aquatics image... ebay cancelled the auction, and gave me a slap on the wrist because of the use of copyrighted material... I relisted with an image I took, made sure any text I had used did not come from their descriptions, and all was good again. :cool2:

 

[RAWalker]

Ahh but you can use logos under the right circumstances:
Simply take a picture of the equipment as it is within it's packaging. This usually has a logo on it and yet because you took the picture of your property it is fair use.
You have the right to use the image of the actual item and it's packing material to show what it is and it's condition (Lets say factory sealed) If the packing material contains the companies trademarks and/or logo it still falls under fair use because it is an image of the actual item that you own.
Otherwise no one could ever print or publish a picture with you wearing a Polo shirt because they all have the Polo Trademark and you'd need permission. Their is a limit on the reach of a manufacturers trademark and it is a gray line when they sell the product. It would need to prove you damaged the value of their trademark to get anything beyond a cease and desist order from the courts. Selling their product bellow their MAP or MARP price wouldn't be sufficient grounds.

Just to clarify, fair use doesn't apply to any/all uses of someone else's intellectual property. It only applies if you use them in good faith, and if you use them legally. (eg: you can't use logos, copyrighted images, etc, nor can you misappropriate their marks, misbrand items, or imply a non-existent relationship/endorsement between you and the mark holder.)

For example - and not saying this is a brand in question - but you could not use this image:

But could use something like this one:

You couldn't use this:

But you could say "Atomic Aquatics" in copy.

Etc, etc...

 

[Herk_Man]

If you bought the stuff at an auction or from a store going out of business and are not claiming to be an authorized seller and are stating where the stuff came from SCREW EM AND TELL US WHO THEY ARE! This is like me buying a few items in package at the local flea market and putting them up for sale on ebay. I am the one who sets the price. I know what I paid and how much I want to make off of them. You bought them at a discounted price from a dealer. You did not sign a contract with the mfg. Tell em to go to hell and tell me what kind of prices you have. I may be interested in buying some stuff myself if it's items I can't get from my local shop.

I agree. You bought it, you own it, if someone wants to buy it from you, that's between you and the buyer, as long as you are honest about the equipment and any guarantees, or lack thereof, that come with it.

 

[RJP]

Otherwise no one could ever print or publish a picture with you wearing a Polo shirt because they all have the Polo Trademark and you'd need permission.

Actually, you can't use a picture of someone wearing a Polo shirt in an ad. Yes, you can in a news story or similar context, but not in an ad...for anything. For instance, you can't have a guy wearing a Polo shirt in an ad for Mercedes, or a guy wearing Nike sneakers in an ad for a pharmaceutical product, etc, etc. Guess how I know that for sure!

Their is a limit on the reach of a manufacturers' trademark and it is a gray line when they sell the product. It would need to prove you damaged the value of their trademark to get anything beyond a cease and desist order from the courts.

Not true. Trademarks have HUGE financial value. The audited value of the Coke brand/logo/trade dress is quantifiable asset on the company's books, and it's value is measured in billions of dollars. Infringement causes de facto financial harm, and proof of infringement itself is sufficient to establish that damages have been incurred. Amount TBD of course...but the test of "damages" is met in establishing proof of infringement - even if unintentional infringement. Most companies won't try to go beyond cease and desist orders other than in cases of clear bad-faith violation/infringement, but that doesn't mean they couldn't do so and/or that they wouldn't prevail.

 

[RJP]

RJP...
That made me laugh... for a different reason! (And no... that's not the brand giving me issues now) Last year I was selling some personal items on ebay and used a atomic aquatics image... ebay cancelled the auction, and gave me a slap on the wrist because of the use of copyrighted material... I relisted with an image I took, made sure any text I had used did not come from their descriptions, and all was good again. :cool2:

Funny thing is, that E-Bay only does that by request of the owner of the registered trademark or copyright. Ebay doesn't go through and review auctions - at all, ever - for this sort of infringement. Imagine how many millions of auctions a day they would need to review, determine if an image actually infringed, etc, etc. Just not possible. So obviously someone at Atomic Aquatics reviewed your auction and notified E-Bay, requesting that they stop the auction. Good for them!

:cool2:

 

[H2O 70]

So, thoughts anyone?

Do what OTWS does and sell it on e-Bay.

 

[LMM1967]

I would contact the company and verify that they really are interested in your site. I know in another industry that has some manufacturers that enforce MAP they almost always use a third party service to scour the web for violations. This may just be a canned notice from a third party company.

 

[jjardin]

Deleted