Resale Yard Sale Store Owners and Buyers Question for you

I have a resale store where I sell furniture and accessories from SL's top stores. These are items from my inventory...that I have not used, for one reason or another.

I recently received a note from one of the store owners....that I am to STOP using their name in Classified Ads.

I use their name....because I advertise that I have "Quality, Stylish" resale items, and no junk......and this should certainly be a compliment to them.

I have also purchased a zillion items from their store over the last year and a half, to furnish a zillion homes that I've sold furnished....thousands of lindens spent in their store....consistently....over and over again.

I refer people who look at the homes I advertise, to their store, as well....and people can see their furnishings set up at my homes....in a home setting, rather than a store....and get ideas on how to use the furniture.

Must say....I am a tad perturbed at the note that store owner sent me.....considering I probably send them much more business....my own business included....I see more benefits to them, than harm. I just feel that the Big Guy is hassling a small gal.

To resale store owners....and furniture buyers....do you have an opinion on this? Is there a rule that I can not use their name in an advertisement, as long as I have mentioned that it is Resale?

Thanks for your Input!
Mickey Vandeverre

Have you tried talking it out with the store owner? Explaining basically what you said here about the items you've purchased from them and business you refer to them?

The store owner may not care about any of that and think that the fact you are using their name in the ad brings business to you before them...since yours is a yardsale and items are cheaper at yardsales.

If the store owner doesn't want to work with you on it and it bothers you that much then quit shopping there and referring people there.

For the future, you may want to talk with the store owners whose names you are using in your ads.

I'm not at all sure about what the laws/rules would be regarding this....but it seems to me, as you explained it....you're not actually doing their business any harm. It would be quite another story if you were advertising as a dealer of that product...but if your adds clearly state items are 'resale' or even 'yard sale'.....I don't see how that alone is going to undercut any one creators sales ability.

Have you explained all this or tried discussing it with this person? Some folks perhaps feel they should have exclusivity in SL with their creations...and I suppose that is their right to feel that way. It may be that in order to save yourself headaches down the road....you'll just have to appease this guy now and take the name off your adds. *shrug* Sucks, but then again, the drama that might ensue is probably not worth the use of the name.

sounds like the BS I got on SLX when I tried to sell off an item. They complained about the trademark name to get it delisted, never mind it was the proper name and being sold as used.

So I no longer do business with them or any affiliates of sexgen.

Send them a link to the first sale doctrine, and mention you are selling the mod/transfer versions of their items. If they don't like it you can always offer to sell them at the same price and remove the links from the about land/classifieds

Even if the creator has trademarked the name, which in most cased in SL they have not, he cannot stop you from using it when you are reselling the item. Honda is a registered trademark, but they cannot prevent you from using it when you advertise your used Honda for sale.


http://en.wikipedia.org/wiki/Nominative_use

Nominative use
From Wikipedia, the free encyclopedia
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See also Fair use (US trademark law).
Nominative use, also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit,[1] by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own. Nominative use may be considered to be either related to, or a type of "trademark fair use" (sometimes called "classic fair use" or "statutory fair use". All "trademark fair use" doctrines, however classified, are distinct from the fair use doctrine in copyright law.
The nominative use test essentially states that one party may use or refer to the trademark of another if:
The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute)
The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol)
The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags.
Furthermore, if a use is found to be nominative, then by the definition of non-trademark uses, it can not dilute the trademark.[2]

In New Kids and in Playboy v. Welles, the courts examined older cases, identifying a unifying principle that they then named "nominative use". Among the older cases cited by the Court in Playboy v. Welles was Volkswagenwerk Aktiengesellschaft v. Church,[5] in which the Ninth Circuit had ruled that an independent auto repair shop that specialized in repairing Volkswagen cars and mentioned that fact in their advertising was not liable for trademark infringement so long as they did not claim or imply that they had any business relationship with the Volkswagen company.

then stop using their name. and quit buying their stuff for resale if you don't like their policy. der.

Unless your ad tries to pass your place off as having something to do with the piece's store/maker, it seems to me that the guy is just being silly - maybe priding himself that he's a real businessman - in his mind. You are more than welcome to swap your allegance, buy the stuff from my store, and mention my store's name in your ads if/when you sell it

Maybe he thinks that, when someone buys a piece from you, he loses a sale, but that would be silly thinking.

but the store owner doesn't want his name used elsewhere, and since the OP was asked to stop, the OP should stop.

It depends how the name is used. As was pointed out, there is nothing wrong with advertising "1 Xcite penis", for instance, and Xcite couldn't do anything to prevent it. On the other hand, an ad saying something like, "Prim Savers low prim furniture: Chesterfield couches, sex beds, Tiffany lamps, and more" wouldn't be right because it sounds like a dealership or something like that. It's down to how the name is used.

i was actually considering the aspect of respect, not legalities.

This is actually quite a can of worms. Linden Lab's recent trademark policy indicates that the original seller is well within their rights to ask for their name to be removed from classifieds.

However Linden Lab's search utility will happily show that item, with that brand name, for sale on that parcel.

Ok, but if I were the OP, I wouldn't even consider respect. The items were paid for, the items can be sold and, if the name is well-known enough to make it suitable, they can be sold as being 'by' that name.

LL's policy might or might not, I couldn't say - however, if it does, it does not correspond to actual trademark law, where this sort of use is perfectly fine.

Ebay often remove listings from people selling brand name items, even when it's not a counterfeit item.

Well, if so, that doesn't correspond to actual trademark law either.

Ah gotcha, but surely there's some link between who can use a name and who can't?

you can advertise a ford truck as a ford truck in the classified ads.

Because it is product information on an item you are reselling.

If a company refuses the ad at the behest of say ford. They and the manufacturer lose at least one customer... and word of mouth spreads quick.

Their policy is irrelevant. As has been pointed out, when you resell some used goods you are well within your rights to use their name to accurately describe the goods.

There is a link between the way the name is used and whether that is prosecutable, certainly, if that is what you mean, but advertising a resellable product with its name is definitely all right. If I sell Nissan or Gaultier or Xcite products I am allowed to say so, if I am not trying to pass myself off as being part of that company.

Right, but say if I open a store selling Hewlett Packard printers, could Hewlett Packard object? I mean they have an authorised dealer network and everything, or would it just be a case of me not being able to imply I was an authorised dealer?

If you have products from that brand for sale in your store and aren't just using their name to help your store show up in search, I don't see an issue with using the name in your classified.

I know some designers have a legitimate issue with people using their brand names to promote a competing business, and this happens all the time. But if you are reselling an item, mentioning the name of it in your classified is only a service to people who are looking for that item. Kind of like when I look through the newspaper classifieds to buy something secondhand - the ad needs to provide the relevant information.

And sellers, if you don't want your items resold at yard sales, please uncheck the "resell" box and give us copy permissions instead.

No, they couldn't object (unless you _were_ explicitly claiming that you had been authorised by them). Well, they could object, but they'd just make themselves look silly. Imagine what eBay would look like if the simple mention of a name were illegal!

Have you been to ebay lately? The management couldn't run a piss up in a brewery. However I digress and I've gone off on a tangent from my original point.

What I was trying to say was, even if the original seller moans that you shouldn't use their name in your classifieds, the Second Life search system will happily show that item for sale on a certain parcel and if people search for it by name, they will find it. So no matter how much the original seller moans, the item will still be able to be found for sale.

It's possible that the creator in this instance has just misunderstood and mistakenly believes the OP is selling unauthorised copies of the item (copybot etc) and has such little faith in going through the proper channels that they are asking for their name not to be used out of pure desparation. If they think they can't stop you selling the goods, atleast they can make sure they are not associated with you - that's possibly the logic they've followed. Talk to the creator and reassure them that they have nothing to worry about on that score.

That sounds fine to me. Either somebody visits the original shop, or they visit a reseller who has bought the original from me (and so I have _already_ been paid).

Admittedly it is better for me as a seller if somebody comes to my own shop to buy a particular product, as I only sell my own products and thus a visitor who buys something else there will make _me_ money rather than somebody else. But, having resellers is good for publicity, which helps my overall sales.

Either way, the law won't allow me to claim copyright over my business' name in that instance.