Corporate Strategies, First Sale Rules, and Copyright Misuse: Waiting for Answers from Kirstsaeng v. Wiley and Omega v. Costco (II)
Abstract
In this Essay, I continue my previous analysis of the first sale rule (or principle of exhaustion) in intellectual property law in the context of international trade. In particular, I highlight the differences between the first sale rules in trademark and copyright law — in particular, international first sale in trademark law and national first sale (at least to date) in copyright law — and criticize the corporate trend to invoke copyright protection for incidental product features of otherwise functional and uncopyrightable products in order to restrict the importation of gray market (genuine) products into the United States. During the past decade, corporations have increasingly turned to copyright law to protect the designs used in their labels, logos, products packaging, and so forth. However, I elaborate in this Essay that this trend is frequently finalized at leveraging the copyright protection on these designs to encompass the entire products to which these designs are affixed, and in turn circumvent the rule of trademark law (international first sale) by blocking the importation of gray market products under the more business-friendly rule of national copyright first sale.