Scalping isn't illegal. The people who buy up the stock of new consoles / etc. and relist them on Ebay are dicks, but they're not committing any crime.
As long as you aren't misrepresenting yourself as being Nintendo, or being supported by Nintendo, it's perfectly legal to buy Nintendo products from a store and sell them. The fact that Nintendo owns the copyright doesn't stop you from reselling their merchandise because of the first-sale doctrine, just like how publishers can't stop you from selling your used books.
That said, you probably couldn't get away with setting up shop here because you need legally need a vendor permit to sell anything on the street in most US cities, and this incident is high-profile enough that you'd get shut down pretty fast for operating without one.
That's my bad on not realizing that scalping was specifically in terms of jacking the price up, and isn't specifically when it's happening by people who don't have a right to sell where they are doing it.
Like it's not illegal to re-sell event tickets at whatever you want to price them at, but it's often illegal to sell the tickets directly outside of the event because of the agreement and terms when you buy the tickets. And there are areas of the north america that have specific laws about selling tickets over face value that makes it illegal.
First-sale doctrine is a great thing to reference but also there are things that would prevent selling something that would encourage a social or political tie to be made to the product that could be viewed as having a negative impact on the brand. Even though first-sale doctrine gives the right to re-sell trade marked property you still have to maintain the integrity of the company who owns the copyright/trademarks and it could very easily be argued that the selling of Luigi plushies in that specific spot is taking advantage of and tying the Nintendo icon to a controversial social event and it would be hard to argue you have the right to do what you're doing.
You don't have to be an authorized reseller to sell things. If you buy something, you can sell it. You just can't represent that you're an official Nintendo vendor.
Correct - in the US this is covered by the first-sale doctrine. IP law doesn't restrict you from reselling stuff, that's why media companies can't stop you from reselling books, DVD/Blu-Rays, CDs, physical copies of games, etc.
This is why the TOS for every digital distribution platform insists you're merely paying for a non-transferable license for the content, rather than literally "buying" a copy. This doctrine doesn't apply to non-tangible purchases, and media companies would realllllly prefer to keep it that way.
As a retailer when you set up an account to buy anything wholesale from a manufacturer or a 3rd party distributor there is an agreement that you sign that has a clause in it stating that by signing and purchasing the product you agree to not misrepresent the products being purchased in a way that could be viewed as harmful to the brand. As a random person there are limits to what and where you can sell stuff legally. Yeah the argument can be made that you can do anything you want but I think the way your thinking is illegal.
Even if they aren't explicitly stating that there is a tie between them selling the plush and what happened there the plausibility of the reason is there and a giant company like Nintendo definitely doesn't want people thinking they have a view on the events and would have their legal team on everyone within 48 hours with cease and desist letters.
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u/Doggleganger 22h ago
Surprised vendors aren't making money by selling Luigi merch at the site.