Will I get in trouble for selling Oakley's on my local Craigslist? - Patent Law Questions and Answers- LawQA.com

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Will I get in trouble for selling Oakley's on my local Craigslist?

I'm wanting to start selling these Oakley’s on my local craigslist but before I do I want to make sure this is legal? Here is my ad I want to use. "For sale sun glass case with a free pair of glasses. Both case and glasses are brand new never worn. Case was made in China. I assume no responsibility or warranty for the glasses. You are paying for the case."I never stated these were real or fake and that the persons are buying the case not the glasses. Can I get in trouble?

Answer By Gerald Walsh

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You are probably all right to sell Oakley's that you have purchased in the ordinary chain of commerce as long as you do not infringe any patents, trademarks, or trade dress related to the Oakley product.

Answer Applies to: Alabama
Replied: 5/13/2013

Answer By Jason P Webb
Webb IP Law Group
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If they are fakes, you can get in trouble, even if you don't know they are fakes. The part about just selling the case and giving the glasses away for free doesn't really help you, since the glasses are still associated with a sale. If they are real and you can prove it (have receipt from an authorized distributor) than you should be just fine.

Answer Applies to: Utah
Replied: 5/9/2013

Answer By Hasse & Nesbitt
DANIEL NESBITT
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Yes. That's a far as free advice can go. If the shoe were on the other foot, what would you think? If you need a legal opinion on this, then contact me or another attorney for good compensated advice.

Answer Applies to: Ohio
Replied: 5/9/2013

Answer By Maurice Ross
Barton Barton & Plotkin
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If the goods are counterfeit, you can get in big trouble. Anyone who deals in items on E-bay or Craigslist has an absolute duty to assure that the items are authentic and not counterfeit. Trafficking in counterfeit goods is a criminal offense. Further, you can be held strictly liable in a civil suit for damages arising from this conduct, which could violate Federal trademark and copyright law. The civil penalties for violating copyright law are sometimes harsh-you could be liable for from no less than $750 to up to $30,000 for each copyrighted work infringed, and up to $150,000 for each work if the infringement is willful. Likewise, if the goods are stolen, then you could be prosecuted for possession and trafficking in stolen property, which is a felony. This is a dangerous business unless you can verify that the goods are authentic.

Answer Applies to: New York
Replied: 5/9/2013

Answer By Kirk A Buhler
Law Office of Kirk Buhler
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Probably. You seem to know that neither came from Oakley and you are using the Oakley name to sell competing product. I, however you can show proof that the products were manufactured BY Oakley and that they were purchased through a company or representative that is authorized to sell Oakley product then you might be fine.

Answer Applies to: California
Replied: 5/9/2013


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This could and probably will raise trademark and copyright problems for you.

Answer Applies to: Illinois
Replied: 5/9/2013

Answer By Neil Juneja
Gleam Law
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Oakley is a registered trademark. Selling a product that bears a counterfeit mark would be trademark infringement under federal law. In addition, it is possible that some Oakley sunglasses could be protected by utility patents and design patents. If that is the case, you might also be infringing upon Oakley's patents.

Answer Applies to: Washington
Replied: 5/9/2013

Answer By Ernie Linek

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You will likely get into trouble.

Answer Applies to: Massachusetts
Replied: 5/9/2013

Answer By Mark Hubert
Mark S. Hubert PC
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If the sunglasses you have are as it sounds, fake Oakleys, then you cannot "make use sell import or offer to sell" them without infringing any patents or trademarks out there. Obviously if you are selling these as a 1 time only 1 pair type of deal then none is going to come after you but if you bought a case and are trying to sell them 1 by 1 on craigslist or ebay - i would caution you against that. If the Oakly people found out and wanted to find out where the eventually came from in China, they would likely sue you in federal court. This would cost you tens of thousands and possibly hundreds of thousands to get out of the lawsuit. Proceed at your own risk. Please don't think for a min that if you sell the case and give the glasses away you can escape any type of liability. Its a very thinly veiled sale and besides the statute requires only that you "use" the glasses to be an infringer.

Answer Applies to: Oregon
Replied: 5/9/2013

Answer By Daniel Flamm

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If you sell or distribute an item you have reason to believe may have counterfeit markings, the trademark owner can seek damages. In short, yes. ps- the charade of only selling a case would be unlikely to mitigate.

Answer Applies to: California
Replied: 5/9/2013

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