Q: Hi, we are a gift basket business in Florida. What are the laws about having items in a basket that are trademarked?
for example, If we put a book in a kids box is that allowed? What about things like legos or disney or another "known" company product in the basket if we are not claiming it as our own or that we made it?
A:
When it comes to including trademarked items in gift baskets, the key considerations are the principles of trademark law and the "first sale doctrine." Here's what you need to know:
1. First Sale Doctrine: Under U.S. copyright and trademark law, the "first sale doctrine" allows the purchaser of a legally obtained, genuine trademarked product to resell that product without the trademark owner's permission. This means that if you purchase genuine, authentic products from a legitimate source, you can include them in your gift baskets without infringing on the trademark.
2. No Implied Endorsement: It's important not to imply any official connection, endorsement, or sponsorship between your business and the trademarked brands. Your marketing materials should make it clear that the trademarked products are simply components of your gift baskets and that you are not affiliated with the brands.
3. Quality Control: Ensure that the trademarked products you include are genuine and of good quality. If you include counterfeit or defective items, it could lead to legal issues and damage your business's reputation.
4. Repackaging and Labeling: You should not repackage or re-label the trademarked items in a way that could cause confusion about the product's origin or manufacturer. The original packaging and labeling should be maintained.
In your specific examples:
- Including a book in a kids' gift basket is generally allowed under the first sale doctrine, as long as it's a legally obtained, genuine copy of the book.
- Similarly, including genuine LEGO sets or Disney products in your gift baskets is permissible, provided you follow the guidelines mentioned above.
To protect your business, it's advisable to consult with a qualified attorney specializing in trademark and intellectual property law. They can provide personalized guidance based on your specific circumstances and help you navigate any potential legal issues.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
