Poolesville, MD asked in Business Formation, Business Law, Copyright and Gaming for Maryland

Q: Can you re-sell custom painted video game controllers as a legal business?

1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: “Under the doctrine of ‘patent exhaustion,’” United States Supreme Court Chief Justice John G. Roberts Jr., wrote in a 2017 decision, “once a patent holder sells an item, it can no longer control the item through the patent laws.... The purchaser and all subsequent owners are free to use or resell the product just like any other item of personal property, without fear of an infringement lawsuit.” What you are selling is your artwork, and adding a premium to the purchase price of the product you bought for the artwork, the same way a person, or used car dealer, cannot be held liable for patent infringement for fixing up a used car for sale, putting on fresh paint and accessories like mag wheels, spoilers, chrome trim and pin stripes. Look at all the used items sold on e-Bay and CraigsList, many of which are refurbished with new parts to make them work or to restore their functionality and appearance, thereby making them worth more than they otherwise would be worth. Just do not claim the underlying product is your manufactured product.

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