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  1. #1

    Default Shop forbidding (private) re-sale of samples

    I am curious of what you think of this story (warning: long rambling follows).

    A friend of mine has purchased some samples from a Dutch niche shop. After having tested them she placed them on Marktplaats, the Dutch second hand online market place. In a few days' time she received the following e-mail from the shop (translation from Dutch - excuses for the un-Englishness of some sentences):

    ---------
    Dear Mrs. (my friend's name),

    Via Google the message has reached us that you are offering samples on Marktplaats from perfume houses which we stock. It concerns samples from the houses Bois 1920, Bruno Acampora and Xerjoff.

    After searching our administration we have the suspicion that these are the samples which you purchased via our website (website of the shop follows) on 4 March 2013. The samples ordered from us are meant for your personal use for getting to know the perfume houses. Therefore it is clearly stated on our web page that samples should not be re-sold (link to the related page. It states indeed that it's not allowed to re-sell the samples and they can't be returned). We also noticed that you are offering full sample sets.

    Only ...shop's name... and the points of sale authorised by us are entitled to selling or giving away samples to clients as a promotional activity.

    We kindly but urgently request you to remove the adverts from Marktplaats by 9 April 2013 before 12.00 since you are causing serious damage to the brands. By the way, we'll inform our partners in Italy (they are referring to the brands they sell) about your activities.

    The samples you are offering on Marktplaats are the following:
    (links to the advertisements follow).

    Regards,
    (Name of the sender)

    -------

    I was really pissed when I read this e-mail (and getting now pissed again re-reading it). I have no clue if they are within their legal rights when forbidding the (private) re-sale of samples.

    The "you are seriously damaging the brands" statement is simply bulls**t. It only goes to show that they have no clue about how the world of perfume lovers works. I would think that if somebody gets rid of their unwanted samples then they'll most probably put the money towards purchasing more samples or even bottles. Also, this way they are reach a larger audience, more people will try the products they are selling.

    The "we will report your activities" part is simply uncalled for and it's a huge overraction IMO.

    They thought they were defending their sales but what they have reached so far is quite the opposite: my friend will never purchase from them again and neither will I (I have done so a few times in the past). So they've just managed to lose two clients.

    What do you think? Am I overreacting or is this really a weird attitude from them?

  2. #2

    Default Re: Shop forbidding (private) re-sale of samples

    It doesn't sound like you're overreacting - I would be very annoyed as well. She paid her money and they're now her property.

    Did she state the source of her samples on the auction? If not, they're spying on customers' private activities, which is unacceptable.

  3. #3
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    Default Re: Shop forbidding (private) re-sale of samples

    Bullying. They can state whatever they like on their web pages but unless there is law supporting such restricted use of what one has legally purchased, they are only blowing smoke.

    That said, if they don't care about spending money to fight silly legal battles, they could cause trouble for your friend if they file suit.


  4. #4

    Default Re: Shop forbidding (private) re-sale of samples

    You have all right to be pissed. You're doing the correct thing not to deal with them anymore.

  5. #5
    Dependent Birdboy48's Avatar
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    Default Re: Shop forbidding (private) re-sale of samples

    They seem to be arguing that there is some sort of "intellectual property" aspect to these samples, and like certain software products, they were intended only for his exclusive use, and furthermore that your friend's attempted sale of them to another was in violation of some sort of agreement that he, as a matter of course, should have been well aware of at the time. Did they inform him of this curious and particular quality of the sale at the time he made his purchase ? I imagine not.

    The letter also seems to imply that all of the houses they carry hold this same view, but it's certainly nothing I've heard stated or even implied before, and the idea that he should be bullied either for his ignorance, or on the other hand, his willful flaunting of this implied agreement, by someone who had earlier gladly accepted his money for the items seems outrageous to me.

    They may threaten to inform the houses of who he is, but if it were me, I would in turn let them know that he'll be forwarding the houses a copy of the offensive letter they've sent him for their own perusal

    I can't imagine the houses would be happy knowing that one of their outlets is spreading this sort of ill will, and apparently without their permission, saddling their own names to it as well.

    If they feel that a wider dissemination of knowledge of their products will in some manner harm their brands, then they are the ones who are mistaken in allowing these samples to leave their shop in the first place, let alone taking the base action of charging money for them.
    Last edited by Birdboy48; 10th April 2013 at 04:04 PM.

  6. #6

    Default Re: Shop forbidding (private) re-sale of samples

    My understanding is that EU has VERY strict rules on the use of personal information -- and it strikes me that, even though your friend provided the shop with her personal information, she did it only for a limited purpose (i.e., to purchase and receive samples). The shop may post their privacy policy online, and this might outline what they do and don't do with their customers' information. If the shop used her personal information in a way that isn't permitted by its privacy policy, that could be problematic for the shop, too. Permission for one kind of use doesn't necessarily give permission for *all* uses.

    So, if they choose to make a stink about this resale (and, btw, they may not have standing to make a stink -- they don't own the brand, and it's *typically* the brand owner's responsibility to protect the brand), then your friend could inform them about the stink SHE plans to make, publicly and to the relevant authorities, about their misuse of her personal information (assuming she didn't consent to broad use by virtue of her purchase -- again the shop's privacy policy and EU privacy laws are important things to know).

    BIG QUALIFIER: I don't know the intellectual property rules in the EU or in the particular country, nor am I intimately familiar with the details of EU privacy laws. I know just enough to be dangerous. Your friend should do her own checking into the privacy piece. This shop could really get itself in hot water as the EU privacy laws are NOT to be trifled with.
    Last edited by ExtremeK; 10th April 2013 at 05:52 PM.

  7. #7

    Default Re: Shop forbidding (private) re-sale of samples

    Hang on a minute, folks.

    The shop is selling samples? Are they 'official' labelled samples from the perfume companies mentioned? Because, if so, surely the shop receives these samples for free from the perfume company to give to prospective clients for free, n'est-ce pas? I wonder if the companies have sanctioned the shop to sell on samples . . . all the samples I get from retailers are free, if a retailer tried to sell me official samples I'd tell them to f*** off and take it to management or the company who makes the stuff.

    Or is the shop decanting stuff, labelling it themselves and selling it? And if so - are they permitted to do this by the companies?

    Either way, sounds fishy to me. Smells fishy. Whatever.

  8. #8

    Default Re: Shop forbidding (private) re-sale of samples

    It's got nothing to do with intellectual property. The perfume formula is the only intellectual property involved and that's not in question for the shop. It may be an issue for the perfume companies, like the way illegally downloading music hacks off the record companies.

    My guess is that the person in the OP either named the shop in the sample listing or clearly posted a picture of the shop's logo on the sample vials. I doubt the shop Googles every customer who buys samples - which is what a couple of people appear to be implying. They probably Google themselves now and again, as I am pretty sure a few perfumers and perfume shops do, to see what people are saying, and maybe to see if they're ending up on ebay.

    I'm not sure what got the shop's goat (although it might be helpful to be able to click the link to the related page on their website as the OP indicated - maybe it explains why). But one thing I know: shops like Les Senteurs in London make a point of making samples from fresh bottles right in the store, and that's to show that what you're getting is the real thing, and totally traceable. It's part of their good reputation. I could understand if they bristled a little at the idea that samples with their name on them are floating around from hand to hand with nothing to ensure that they aren't adulterated, or old, badly stored, or otherwise in poor condition. Maybe they think that could make them look bad.

    Also, if the shop does have a clearly stated policy that they don't want their samples re-sold (again, that link would be useful), then doing business with that shop means complying with that policy and not being surprised if they try to enforce it. If I disagree with that policy, I shouldn't shop there.

    I don't necessarily agree with the policy, and I think there's a point in that the OP's friend paid for the sample. But if you think about it, it's not that surprising.

  9. #9

    Default Re: Shop forbidding (private) re-sale of samples

    Quote Originally Posted by Kagey View Post
    It's got nothing to do with intellectual property. The perfume formula is the only intellectual property involved and that's not in question for the shop. It may be an issue for the perfume companies, like the way illegally downloading music hacks off the record companies.

    My guess is that the person in the OP either named the shop in the sample listing or clearly posted a picture of the shop's logo on the sample vials. I doubt the shop Googles every customer who buys samples - which is what a couple of people appear to be implying. They probably Google themselves now and again, as I am pretty sure a few perfumers and perfume shops do, to see what people are saying, and maybe to see if they're ending up on ebay.
    Names, logos, tag-lines, branding, etc. can all be intellectual property. Not just the perfume formula.

    That is at least in part why Bond No. 9 made a stink about the decanting services a few years back.

    It's also why your suggestion about the shop's name being used in the listing may be accurate -- although their letter said nothing about ceasing to use the shop's name for commercial purposes without their consent. I find that interesting. If they were going to gripe about something, that would be their best leg to stand on IF their name/logo appeared in a photo of the sample or anywhere in the listing....
    Last edited by ExtremeK; 10th April 2013 at 08:02 PM.

  10. #10

    Default Re: Shop forbidding (private) re-sale of samples

    Don't think the shop is doing itself any favours here: such behaviour could trigger a boycott...

  11. #11
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    Default Re: Shop forbidding (private) re-sale of samples

    Quote Originally Posted by 30 Roses View Post
    Bullying. They can state whatever they like on their web pages but unless there is law supporting such restricted use of what one has legally purchased, they are only blowing smoke.
    Pure and simple

  12. #12
    Basenotes Junkie Curly11's Avatar
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    Default Re: Shop forbidding (private) re-sale of samples

    In general, I believe that once you purchase an item, from a store, then that item is YOUR property. It doesn't seem reasonable that the former seller would be able to control future use of the item once it had been purchased. It might be different if the item had been leased, but it is impossible to lease perfume.

  13. #13

    Default Re: Shop forbidding (private) re-sale of samples

    I think the shop is being very silly and shortsighted. All perfumistas pass on samples and some resell them. There are often niche batches on ebay that quite clearly state they have been used a little and the person is having a sample clear out. Lots are on Les Senteurs cards and they don't seem to mind one bit nor make a fuss. It is good advertising for them after all. Any devout perfumista would make a point of going there purely because of it if they didn't already know of them.

    This shop is cutting it's own nose off here. The people who may have bought these samples would highly likely go to the same shop afterwards to get some more or even buy the FB. Were these samples labelled as such from this particular shop?

    I doubt they could sue. These are hers to sell on as she wishes. It may just be worth ignoring them unless they could cause trouble. Can they prove anything? Tell us which marketplace and we can all join in.... lol

  14. #14

    Default Re: Shop forbidding (private) re-sale of samples

    I'd like to know which silly shop this is, so I may never order from them!!

  15. #15

    Default Re: Shop forbidding (private) re-sale of samples

    This relates to the pressure brought to bear several years ago on Ebay to ban decant sales. Basenotes then took the preemptive position to follow suit. Despite the fact that Ebay seems to use only token compliance at this point in time, apparently some entities still feel strongly about cheapening their brand. They are concerned that some will fill their labelled vials with other than the original juice.

  16. #16

    Default Re: Shop forbidding (private) re-sale of samples

    [QUOTE=Kagey;2925797]My guess is that the person in the OP either named the shop in the sample listing or clearly posted a picture of the shop's logo on the sample vials.[\QUOTE]

    I don't know how she formulated her advert but it could easily be indeed that she mentioned that she purchased the samples from the given shop.

    Quote Originally Posted by Kagey View Post
    I'm not sure what got the shop's goat (although it might be helpful to be able to click the link to the related page on their website as the OP indicated - maybe it explains why).
    Quote Originally Posted by Kagey View Post
    Also, if the shop does have a clearly stated policy that they don't want their samples re-sold (again, that link would be useful), then doing business with that shop means complying with that policy and not being surprised if they try to enforce it. If I disagree with that policy, I shouldn't shop there.
    I'm somewhat hesitant to disclose the shop's name at this point, so I copy the relevant text from their website:

    "De samples sets die u bij (shop's name) kunt kopen dienen om u de kwaliteit en diversiteit van de geur te laten ervaren. Samples worden door ons persoonlijk afgevuld en bevatten ruim 1ml parfum en zijn voorzien van een spray. De samples mogen niet worden doorverkocht en kunnen niet worden geretourneerd. "

    Translation:
    The sample sets you can by at (shop's name) are meant to experience the quality and the diversity of the scent. The samples are filled by us personally and they contain at least 1 ml of the fragrance and have a spray mechanism. The samples are not allowed to be re-sold and can not be returned.
    Last edited by bonsai; 11th April 2013 at 07:18 AM.

  17. #17

    Default Re: Shop forbidding (private) re-sale of samples

    Quote Originally Posted by Scentsucker View Post
    I'd like to know which silly shop this is, so I may never order from them!!
    I think I know but am not 100% sure. Name begins with an 'A' and sells only Italian fragrances...


    - - - Updated - - -


    Quote Originally Posted by bonsai View Post
    I'm somewhat hesitant to disclose the shop's name at this point, so I copy the relevant text from their website:

    "De samples sets die u bij (shop's name) kunt kopen dienen om u de kwaliteit en diversiteit van de geur te laten ervaren. Samples worden door ons persoonlijk afgevuld en bevatten ruim 1ml parfum en zijn voorzien van een spray. De samples mogen niet worden doorverkocht en kunnen niet worden geretourneerd. "
    After googling a chunk of this text, I am correct.

  18. #18

    Default Re: Shop forbidding (private) re-sale of samples

    Yep, google the text, and you'll find the name of the shop. (I'll respect the original poster's wish not to quote the name.)

    While I can, sort of, understand a shop being a little disappointed (though no more than that) if FREE samples are subsequently sold, I think different considerations apply where the samples were, in the first place, sold rather than given away.

    Given the wording of the e-mail from the shop (which is rather unfriendly), I'd suggest that our Dutch members take their business elsewhere...

  19. #19
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    Default Re: Shop forbidding (private) re-sale of samples

    If their contention is that you are 'causing serious damage to the brands' as a reason then to legally stop the seller such would have to be proven in a court of law , and I wonder if it could in this case. Also, a retail store selling brands they do not own, stating that branded samples they sell or give away 'should not be re-sold' or 'cannot be re-sold' may not legally be enforceable by them either.

    If it were me I would just ignore any threats from them.
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  20. #20

    Default Re: Shop forbidding (private) re-sale of samples

    If the goods are either given or purchased, then they belong to that person. External rights would only come into it if that person had either been loaned or leased the samples or had signed up to anything to waive their own rights. I wouldn't imagine the disclaimer alone would be enough in the eyes of the law. It wouldn't be here anyway.

    The problem may lie more with the label containing the shops name than the actual samples. Could the labels technically still belong to them in the same way as intellectual property i.e. the logo? Take the labels off and relist them elsewhere. I presume she wouldn't be in any trouble to let someone else be given them or to try them on, so why the fuss?

    I wonder why this has upset the shop at all..... It isn't as if they will lose any sales. They were more likely to gain more sales by any further transactions rather than unworn samples lying unseen in the bottom of a knicker drawer.

    The whole thing is completely daft and it does smack of bullying.

  21. #21
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    Default Re: Shop forbidding (private) re-sale of samples

    Perhaps ask your friend contact those brands directly to see how they would response, like do they know that shop fill up empty vial and sell them as sample to customer and such. It might not leads her to nowhere but at least get a chance to redirect the accusation back to the root which that shop acting high-horse on behalf on them.

    I find that accusing your friend possibly tarnishing those brands is just plain silly and ironic when they sell the non-official sample. And this.. "Only ...shop's name... and the points of sale authorised by us are entitled to selling or giving away samples to clients as a promotional activity."

  22. #22

    Default Re: Shop forbidding (private) re-sale of samples

    I'd bet the first-sale doctrine applies; even if what the shop sells is protected intellectual property (doubtful), once they sell it they no longer control it.

    Incidentally, formulae (think Coke, KFC, or 'the secret sauce' on the Big Mac) are non-patentable, thus the reason for such secrecy.
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  23. #23
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    Default Re: Shop forbidding (private) re-sale of samples

    Quote Originally Posted by mr. reasonable View Post
    The shop is selling samples? Are they 'official' labelled samples from the perfume companies mentioned? Because, if so, surely the shop receives these samples for free from the perfume company to give to prospective clients for free, n'est-ce pas? I wonder if the companies have sanctioned the shop to sell on samples . . . all the samples I get from retailers are free, if a retailer tried to sell me official samples I'd tell them to f*** off and take it to management or the company who makes the stuff.

    Or is the shop decanting stuff, labelling it themselves and selling it? And if so - are they permitted to do this by the companies?
    Good points- even if we're talking about sample sets, the friend in question should be allowed to resell them as long as the integrity of the perfume is respected.

  24. #24

    Default Re: Shop forbidding (private) re-sale of samples

    Quote Originally Posted by Kagey View Post
    Also, if the shop does have a clearly stated policy that they don't want their samples re-sold (again, that link would be useful), then doing business with that shop means complying with that policy and not being surprised if they try to enforce it. If I disagree with that policy, I shouldn't shop there.
    I think that I disagree. Doing business with someone is not, IMO, the equivalent of signing a contract to fulfill whatever whimsical conditions the business wants to set.

    Imagine, say, that a women buys a designer dress. Immediately before the dress is purchased, she's handed a card that states that (1) when she is done with the dress she must destroy it, rather than resell it or give it away and (2) if she gains more than ten pounds she must stop wearing the dress.

    Are these enforceable policies? Most store policies deal with the store's willingness, or otherwise, to cooperate with the customer's future needs. A store could have a policy about returns, or alterations, or warranties, or repairs, or the availability of companion products. But in each of those cases the store is stating what _they_ will do for the customer.

    For a store to declare what the _customer_ will do, after the transaction is done, seems very different. I would expect this to require a full-fledged contract, rather than a statement of policy. For example, when you buy a pedigreed puppy, I believe that sometimes you are forbidden to just sell the puppy to someone else, and you must instead return the puppy to the breeder if for some reason you can't keep it. But I think that you sign a contract to this effect.

  25. #25
    Dependent Birdboy48's Avatar
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    Default Re: Shop forbidding (private) re-sale of samples

    If they have the shop's name on them, rather than them being factory samples, it sounds like they are essentially making decants, and then selling them (rather than giving them away) to their customers.

  26. #26
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    Default Re: Shop forbidding (private) re-sale of samples

    Just a scare tactic imo, not something worth pursuing from a legal or financial standpoint. But I agree with the suggestions to remove the ad and any references to the shop they were purchased from. You can always re-list them with another description. See if they continue with the harassment. If they do then it's game time & bring up the privacy laws into play.

  27. #27

    Default Re: Shop forbidding (private) re-sale of samples

    If you don't want the samples anymore, and you can't return them, what do they expect you to do...throw them out? Assume a friend wants them? Why are they snooping around on a marketplace for people selling samples anyway? Ugh. I wouldn't do business with them anymore. They're being nit-picky to the max.

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