Today I wanted to talk a little bit more about the material difference exception to the first-sale doctrine. So we all know that the first-sale doctrine states that anyone who legally purchases a product has the right to resell that product in commerce without risk of intellectual property infringement. However, some brands in order to get around the first-sale doctrine can implement certain material differences in the products that are sold by approved online resellers so that the products the consumer receives are arguably different when purchased from an authorized distributor versus someone who is unauthorized. So one of the material differences that we've recently come across, both in asserting and defending intellectual property complaints is that certain products require FDA certifications or in the United States compliance with California Proposition 65 in order to be legally sold. So some brands are arguing that only approved online resellers are able to ensure that the products they are delivering to consumers comply with US laws, like the Food and Drug Administration standards, or California Proposition 65, as I mentioned. And this argument works for Amazon's purposes because the brands are able to successfully tell Amazon that consumers might be confused if they don't know that the products are assured to be safe by the FDA or pursuant to California Proposition 65, which requires sellers to include certain warning labels based on the ingredients of their products.
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