The Ship of Theseus: the Lanham Act, Chanel, and the Secondhand Luxury Goods Market

Abstract

The demand for secondhand luxury goods is larger than ever and luxury resale platforms like Poshmark, Vestaire Collective, and The RealReal, among others, are all vying for market share. Generally, this love of secondhand luxury is not shared by luxury brands themselves; brands like Chanel are crying foul, claiming that The RealReal is infringing on their trademarks. Complicating the matter are existing issues regarding platform liability, consumer confusion, and what constitutes a “counterfeit” or “materially altered” good. As a result, existing law not only threatens companies like The RealReal, but our very ability to effectively shop for authentic secondhand luxury goods.

This Comment examines the issue of secondhand luxury goods, their authenticity, and subsequent re-sale through the lens of the “Ship of Theseus.” Section II provides an overview of trademark law, focusing upon the Lanham Act. Section III examines ongoing litigation between Chanel and The RealReal. Section IV discusses modification of luxury goods and impacts on resale potential under trademark law. Subsection A examines the Rolex standard regarding alterations and counterfeit designations. Subsection B examines the Nitro Leisure Prods., L.L.C. v. Acushnet Co. standard regarding trademark law as applied to modification and refurbishment. Subsection C applies the Rolex Watch USA, Inc. v. Meece and Nitro Leisure Prods., L.L.C. v. Acushnet Co. standards regarding modification and refurbishment to the present secondhand luxury goods market. Subsection D examines the secondhand automobile market, providing a comparison of alteration and resale ability. Section V discusses Tiffany (NJ) Inc. v. eBay, Inc. and the potential liability for platforms selling secondhand luxury goods. Subsection A examines how Tiffany (NJ) Inc. v. eBay, Inc. threatens companies that take possession of goods. Finally, Section VI proposes an intersection of antitrust law and trademark law to fix the broken secondhand luxury goods market.

Keywords: trademark law, intellectual property, luxury goods, secondhand goods, first sale doctrine, fashion law, platform liability, lanham act