Daniel Earle and his Amazon reseller company, The Antitrend, filed a lawsuit seeking a declaration that they do not infringe a number of Standard Process 2019 trademarks or otherwise unfairly compete with Standard Process. The Antitrend is in the business of reselling branded goods bought on the open market through an Amazon storefront. This district has seen a number of suits brought by trademark holders against Amazon resellers, notably ecobee 2019s recent series of suits. In this case, Earle claims that he obtains Standard Process goods legally and without restriction. He further asserts that his site makes clear that it is not affiliated with any of the manufacturers whose products are sold thereon, and that no manufacturer 2019s guarantees or warranties will apply to goods purchased from his site. Despite this, he has received a number of cease and desist letters from Standard Process, and that Standard Process filed (but did not serve) a complaint against his site in the Western District of Wisconsin last month. By this complaint, Earle challenges the claims in that complaint, asserting that the first sale doctrine prohibits these claims. Earle notes that Standard Process has already lost on the first sale doctrine in a prior litigation in the Eastern District of Wisconsin (although I would note that Banks prevailed at summary judgment with respect to a website that included an express disclaimer of affiliation, but denied summary judgment with respect to solicitations that included pictures of Standard 2019s products and lacked a disclaimer of affiliation). Earle also asserts that Standard Process 2019 resale policy does not form an enforceable contract, particularly where Earle bought the products on the open market, another issue that Standard Process had previously litigated and lost on (in a 2008 case, Standard 2019s unilateral resale policy was found not to constitute a valid contract, because it imposed no obligations on Standard; it is unclear from the complaint in this case whether Standard has since changed the policy). Earle 2019s complaint does not provide a reason why this case should be heard in Massachusetts instead of the first-filed district, so it will be interesting to see whether this case moves forward in the Commonwealth.
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