The Angel Wears Prada, the Devil Buys It on The RealReal: Expanding Trademark Rights Beyond the First Sale Doctrine

Abstract

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, the consumers, and the resellers—added protection under the material difference and quality control exceptions to the first sale doctrine of trademark law. Furthermore, this Comment proposes codification of the “first resale” doctrine to narrow the scope of the first sale doctrine defense to trademark infringement for the purpose of fostering competition and maintaining quality in the luxury industry