Plant City, FL asked in Trademark and Intellectual Property for Florida

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?

1 Lawyer Answer
James L. Arrasmith
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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.

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