Our friends over at Racked.com feature a daily list post entitled, "Today's Scores," which is dedicated to announcing what brands are up for sale on the various flash sale sites each day. Not too long ago, Louis Vuitton was on that list, which made me think: Since when does Louis Vuitton go on sale? Well, since never. It turns out, private sale site, Belle & Clive, was offering a range of pre-owned Louis Vuitton bags, alongside some other sales, which included: new Kenneth Cole Reaction, Rachel Zoe shoes, and ABS by Allen Schwartz dresses (aka copies of designer dresses) - all brands that are a serious step down (or five) from Louis Vuitton. This type of association alone should be a red flag for Louis Vuitton (a brand that is currently in the process of re-vamping its luxury status in the eyes of many consumers), and while it is worth pondering what effect this may have on Louis Vuitton as a brand, my focus is actually on the legality of such sales by flash sale sites. You may recall that Cartier filed a trademark infringement and false claims lawsuit against flash sale site, HauteLook, for selling second-hand Cartier goods on its site without the authorization to do so. In much the same vein, does Louis Vuitton have a case here?
While it seems that LV may have an open and shut case with Racked for providing what seems to be false information by failing to mention that the Louis Vuitton accessories that were "on sale" were pre-owned (this lack of disclaimer easily could have mislead consumers, as the majority of goods for sale on the Belle & Clive site are new, not pre-owned), what about Belle & Clive? This essentially raises the question: Does the first sale doctrine apply to purses?
A quick heads up for those who aren't sure: the first sale doctrine is the legal concept that (put simply) gives the rightful owner of a copyright or trademark-bearing item the right to lend, resell, give away and or/destroy the item. The owner of that specific copy, however, is not granted the right to copy the item in its entirety and sell it. So, if you buy a copy of a book, which is the copyright of the author, you may re-sell that copy without violating the rights associated with the author's copyright (namely, the author's right to distribute). As you can image, there has been quite a bit of litigation in the realm of the first sale doctrine (think: Kirtsaeng v. John Wiley & Sons, Inc. (more about that case HERE), Quality King Distributors v. L’anza Research International. In Quality King, and Costco Wholesale Corp. v. Omega).
Most recently, in Kirtsaeng v. Wiley, the Supreme Court held that the copyright first sale doctrine applies to copies of works manufactured outside the United States, as well as those made in the U.S. Thus, someone who purchases a copyrighted item outside of the U.S. can lawfully import and sell that item in the U.S. Similarly, someone who purchases a copyrighted item in the U.S. (that was originally made outside of the U.S.) can sell that item in the U.S. These sales may be conducted without obtaining permission from the copyright holder.
The Kirtsaeng case is relevant for us for two reasons: 1) The Toile Monogram print that covers most of the bags being sold is protected both by trademark and copyright law; and 2) Louis Vuitton garments and accessories are made in France. Based on this ruling alone, it appears that the resale of Louis Vuitton bags on flash sale sites is not off limits. The problem that HauteLook encountered and that resulted in the Cartier lawsuit was two-fold: HauteLook, which claimed to never sell second-hand wares, was selling essentially that: second-hand and damaged (and maybe even fake) Cartier watches and passing them off as new (and real). Secondly, HauteLook has long alleged that all of their products come directly from the brand, whose name is on the tag, and the site was selling the Cartier watches without authorization from Cartier, let alone any connection with Cartier.
So, it seems these two instances are quite distinct, especially as Belle & Clive states that the accessories at issue are pre-owned and does not claim any connection to the original brand/manufacturer. So, shop away!