Ruth Perryman ran a site at BargainBeanies.com that invited visitors to “buy, sell and trade” used Beanie Babies. Toy company Ty Inc, registered owner of the Beanie Babie trade mark, won its trade mark dilution argument in a lower court, but that decision was overturned on Friday.
Judge Posner, in the US Court of Appeals for the Seventh Circuit, wrote:
”You can't sell a branded product without using its brand name, that is, its trade mark…, we would find it impossible to understand how [Ruth Perryman] could be thought to be blurring, tarnishing, or otherwise free riding to any significant extent on Ty's investment in its mark.
"To say she was would amount to saying that if a used car dealer truthfully advertised that it sold Toyotas, or if a muffler manufacturer truthfully advertised that it specialized in making mufflers for installation in Toyotas, Toyota would have a claim of trade mark infringement.
"Of course there can be no aftermarket without an original market, and in that sense sellers in a trade marked good's aftermarket are free riding on the trade mark. But in that attenuated sense of free riding, almost everyone in business is free riding."
