West Hollywood, CA asked in Copyright, Intellectual Property and Trademark for California

Q: Can I use a name brand figurine that I buy wholesale as part of a sensory kit I sell? I will not use the brand’s name.

I am developing a sensory kits for kids business and would like to include small animal figurines in the kit. There is a name brand that happens to make the exact size I’m looking for plus they’re great quality. I would like to include them in the kit but not use the brand name in marketing, product description, packaging, etc. The figurines would just be included as a general part of the kit. The name brand sells the figurines in bulk at wholesale prices on faire.com as there are retail stores that buy in bulk and sell in bins individually. Can I use the figures in my kits without having to get a licensing deal if I’m not mentioning the brand? Or could this well known brand come after me legally?

1 Lawyer Answer
James L. Arrasmith
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Answered

A: Using trademarked items in a commercial product without permission carries significant legal risks, even if you don't mention the brand name. The original manufacturer could still identify their products in your kits and potentially pursue legal action for unauthorized commercial use of their intellectual property.

While the figurines are available at wholesale prices, those prices are typically intended for direct retail sales rather than incorporation into other products. The fact that you're planning to include them as components in a different product could be seen as a form of unauthorized product modification or repackaging, which many manufacturers specifically prohibit in their terms of sale.

Your safest path forward would be to either obtain explicit permission from the brand or seek alternative suppliers who produce similar figurines without trademark restrictions. Many manufacturers create comparable products specifically for wholesale use in craft kits and educational materials - these might cost slightly more but would eliminate the legal risks. You might also consider reaching out to the brand directly about potential partnership opportunities, as they may be interested in authorized distribution through educational products.

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