“… I will begin in Part I by exploring the issues that arise under 35 USC § 271(a) for patent infringement by way of an unauthorized offer to sell, or a sale, of a patented item. This analysis will include the limitations posed by patent exhaustion and limited case law. It seems that most likely, the activities of drop-shipping do not infringe as an unauthorized sale but do infringe as an unauthorized offer to sell. Next, in Part II, I will examine the possibility of trademark infringement under the Lanham Act, including a trademark owner’s right to quality control and trademark dilution, where likely the drop-shippers do not infringe trademark. Thirdly, in Part III, I will explore the possibility of copyright infringement, which exists in certain cases but has largely been eliminated by the e-commerce platforms. Finally, I will propose a solution to the systematic issue between drop-shippers and IP owners …”
Kara J Bloomer, Intellectual Property in E-Commerce Retail Arbitrage: An Analysis of the Legality of Using Intellectual Property in Drop-Shipping, 47 Brigham Young University Law Review 1619 (2022).
First posted 2022-07-12 12:30:06
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