“Fair Use” of a Manufacturer’s Product Content by Retailers

A retailer recently raised an interesting question about whether they have the right to use a manufacturer’s product names, descriptions and images in their online advertisements even if they don’t have written authorization from that manufacturer to do so. 

We all know that retailers get product content from many sources – including the manufacturer’s Web site, data sheets, content providers like CNET Channel and Etilize, content creators like ARS eCommerce and Virtucom Group, distributors and even from the side of the physical box that contains the product.  And it’s nearly impossible to determine which content came from legally authorized sources, and which didn’t.

The retailer obviously has the right intentions.  Use a manufacturer’s product content to sell more of its products.  Who would object to that?

Well, what if the retailer isn’t an authorized reseller?  Even in that situation, the “fair use” doctrine seems to protect the retailer (see here).

What if the content is wrong, like a incorrect technical spec that unintentionally misleads a consumer?  Well, this rarely occurs because of the limited content displayed in most online advertisements (name, image and maybe a description – in addition to a retailer’s own information like price and promotions).

If you’ve run into an issue with “fair use” of product content from either a retailer or manufacturer perspective, please share your experience.