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Comment by jjeaff | Hacker News Reader

The evidence is right there in their own blog post.

They are a distributor of the ETI Thermapen and nothing more except 'good friends' with the owners of ETI and that they have contributed design ideas to some versions of the Thermapen. Just as any distributor does. Note how they try to make it sound like they have some sort of ownership of the product, but the only thing they have ownership of is the Thermoworks name and a contract with ETI to be the sole US distributor.

What in their blog post makes you think they have the right to claim copyright infringement for someone selling a Thermapen they bought directly from ETI?

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If they’re the sole US distributor doesn’t that mean they’re the only ones allowed to sell them in the US?

So if I buy one, I'm not allowed to sell it after I'm done with it? That's irregular, to say the least.

Do we all agree, dear reader, there's a distinction between distributor and you selling your used kitchen tools?

If you, dear reader, had a sole distributor agreement with an OEM would you do what you could to protect your reputation and the brand?

Genuine question: what is the distinction between a consumer and a distributor in the context of rights of selling an item that they own?

Which law prohibits the distributor from selling thermometers that they own?

How come an agreement between ETI and Thermoworks have any legal power over anybody else?

It doesn't. If you don't have a contract with pricing stipulations, then you have no obligation to sell at MSRP or MAP.

An exclusive distributor agreement usually means within a given territory, only a single party may buy product from the manufacturer or buy at below MSRP (depending on the agreement). This is not enforced by law, but by a contractual agreement.

You can always buy the product at retail, from another country, or directly from the manufacturer (if they will sell to you) and sell the product at retail.

Not on Amazon. They do make actual no-sale agreements with manufacturers (looking at you, Warner Media) to not sell used product and boot anyone who tries. Which, ah, is great right until they're a near monopoly.

But this looks more like the reseller is trying to wreak havoc with lawful competition sans an agreement with Amazon. They may not look kindly on it if they see what's happening. Competition where it's not being intentionally stifled is the business model.

First-sale doctrine says if you buy something, you have the right to resell it. I'm not exactly sure what sole distributor means. I think it means that ETI will try to refuse bulk sales to anyone else in the US.

https://en.wikipedia.org/wiki/First-sale_doctrine

First sale is only for consumers right? I mean it wouldn’t apply if you’re doing it multiple times for profit.

Honest question, I really don’t know

First sale doctrine applies to businesses as well.

ah good to know! I found "Kirtsaeng v. John Wiley & Sons, Inc.", I wonder if it's related, or if physical goods were already considered resaleable anyway

One side question: how do you manage the warranty? Presumably as the reseller you will need to handle the legal minimum warranty (how long is that in the US?) by shipping the article yourself back to the UK?

> you will need to handle the legal minimum warranty

With the exception of specific types of products (cars) or situations where consumers are gravely at risk (recalls), there is no mandatory warranty in the US. Your only requirement as a reseller is to pass on any warranty from the manufacturer, and allow customers to read a written warranty before making a purchase.

Not true. There are implied warranties of merchantability and fitness.

It’s one of the reasons why Amazon takes such pains to make the questionable assertion that they are at arms length for every transaction. Fraudulent or grey market stuff often fails the fitness test.

The same crap used to happen with fake cameras and electronics in Manhattan. The stores would “go out of business” and reopen the next day under a new guise to avoid legal consequences. Now you just create a new merchant on Amazon.

Not if it's a fake Rolex. Trademarks provide a lot of wiggle room for firms to make a legal nightmare if they chose.

I think fake Rolexes are illegal in the first place. So illegal to sell and resell.

Yes, I was trying to make the point that the First sale doctrine doesn't magically make all things ok.

As always with the laws, there are exceptions and it is more complicated than one might expect.

https://www.thefashionlaw.com/resource-center/gray-market-go...

I don't know why you're getting down voted as it's a common misconception.

Sole distributorship means your company is the only one in a particular territory that the *manufacturer* will sell to directly - usually in exchange for KPIs around marketing, distribution and maybe service in addition to sales.

Anyone else can buy it in an outside territory - for example from another distributor or even from the manufacturer itself (strange things are known to happen when people's incentives are tied to sales targets) and sell it in your territory. While this is often called "grey channel" or "parallel imports", this is perfectly legal if the importer pays customs duty etc and invariably seems to happen if there is significant price differentiation between territories.

The way to combat grey channel is to price right across territories in a way that it's not worth anyone's while to do parallel imports.

It also generally means you have no warranty from the manufacturer, as they generally write the agreement to be non-transferable.

As a consumer you may have some rights even with gray market, but it's not like a US court is going to be able to force a UK company to honor a warranty they never offered in the first place because they never sold directly into this market.

> it's not like a US court is going to be able to force a UK company to honor a warranty they never offered in the first place because they never sold directly into this market

And if there is an official distributor, they suddenly need to start investigating where every customer got their widget from, because they can't afford to provide warranties on items they didn't get the original markup on

In this case though Thermoworks has their own branding on Thermapens sold through official channels. If someone were to copy that branding I believe it would be a legitimate counterfeiting situation.

Going back to Amazon, this brings up another issue: Amazon’s resellers sometimes claim (or try to imply) that gray market imports are domestic versions of the products being sold. I sometimes see gray market cameras being presented as domestic; I only know they’re gray market because of the price, and because the seller is a known gray market reseller.

This isn’t an Amazon issue, per se. I remember shopping for SLR’s from the back pages of Popular Photography in the 1980’s - all of the best deals were gray market imports.

Even large retailers like Costco do this sometimes.

Not necessarily true. If there are patent and/or trademark licenses involved, the sole distributor may the the only one legally allowed to sell in the territory.

Not true. There’s a principle called “first sale doctrine” that basically says that IP rights are exhausted in the first sale of an item. So, as long as they are buying legally made copies of the product, then the company has no legal recourse. You can’t stop someone from buying something in country A and then importing it into country B and reselling it.

In the US most famously decided in the Kirtsaeng v. John Wiley & Sons, Inc. decision. Publishers often charge significantly different prices across different countries for their owm books and this basically prevented them from blocking parallel imports.

> "They are a distributor of the ETI Thermapen and nothing more except 'good friends' with the owners of ETI and that they have contributed design ideas to some versions of the Thermapen."

The text of the blog post also says "Today ThermoWorks also operates its own product design studio in Utah where innovative professional thermometers and timers are created for both companies." so Thermoworks is more than a distributor. jjeaff's representation of the blog post is clearly incorrect and should only increase suspicion of the original accusation of fraud.

I'll translate the corporate speak for you: We have no ownership in the Thermapen, which is our flagship product. But there are some other insignificant products that we have some ownership of which we won't name because no one has heard of them. We just wanted to muddy the water a bit and make it sound like we own the Thermapen and aren't just a retailer.

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