1. A few words on how the Fashion Industry works:
How “leftovers” [of factory runs] should be disposed of varies by contracts, according to Susan Scafidi, a law professor at the Fashion Law Institute of Fordham University. “Some trademark holders insist that they be destroyed, some allow them to be sold within a specific geographic area, others, less concerned with exclusivity and scarcity, will allow the products to be sold,” Scafidi said. ...Obviously, it can be a touchy subject for retailers. Forever 21, for example, declined to comment on the practice, and J.Crew didn't provide an immediate comment.
Apart from contract issues, selling overruns with labels or displaying the brands is more serious offense—it can be seen as a violation of a company's trademark. As a result, VENDORS ARE ASKED NOT TO MENTION THE BRANDS, AND TO EITHER CUT THE LABELS OFF OR CONCEAL THEM IN PICTURES. [Emphasis added] By minimizing the involvement with the brand, the matter is made a lot easier as fashion designs are rarely protected, at least in China and the US, according to Scafidi.
Note that, in the eBay listing, the brand name is not mentioned, nor is the logo very clear in the majority of photos. (Using a small laptop, I didn't even see it when I ordered the garment.)
2. Legal vs. Grey Areas
[From "The Economic Impact of Counterfeiting", by the Organization for Economic Co-operation and Development, 1998, http://www.oecd.org/sti/ind/2090589.pdf ]
A number of activities, such as parallel trading and factory over-runs, are treated as counterfeiting by trademark owners but not by enforcement agencies.
“Parallel trading” refers to situations where products are legitimately bought in one territory and diverted for sale to another territory without the consent of the right holder in the receiving territory. [aka "grey marketing]
A related problem for trademark owners is the unauthorised production by legitimate suppliers. In some sectors, such as toys and spare parts, it has become the practice for suppliers to produce “over-runs” – extra quantities of products which they do not account for – and sell them on the black market. THE TRADEMARK OWNER AGAIN CONSIDERS THE GOODS TO BE COUNTERFEITS BUT FINDS IT DIFFICULT TO TAKE ACTION. COURTS AND ENFORCEMENT AGENCIES TREAT OVER-RUNS AS A BREACH OF CONTRACT RATHER THAN AS A TRADEMARK INFRINGEMENT. [Emphasis added]
Maybe this accounts for the VERY strange response that Ian B got from Jack Wolfskin ("It's an [sic] fake.", go to our website and buy our stuff.) Very odd, indeed, as a reaction to being ostensibly told that someone is committing an international crime, where you're the victim!
Edited to add: Those of you unfamiliar with the clothing industry probably don't know that for each "collection" (think NF's 2013 Fall line), a large number of sample styles are created. Many of these pieces will NOT end up in the collection; some will end up in the brand's outlet stores; others will just be put aside. I bought a "legitimate" MH women's sample shirt that was never released in the long-sleeved version, but dozens of samples were made of that style before it got cut from their summer line.
3. How can BPLers be missing the very foundation of a just society?????
What disturbs me the most about SO many of the comments to this thread is the COMPLETE distain for "due process" under the law -- you have tried and convicted the manufacturer and seller, with ONE TINY SHRED of circumstantial evidence, no knowledge of industry practices, and no opportunity for him to defend himself! Wow, that's scary! Especially from folks who've written pages and pages of fine sentiments about "making a difference", "morality", etc. One of the ONLY things that separates a polity from fascism is DUE PROCESS. Please, think about it. Am I really the only one here who thinks very foundation of the Anglo-American legal system is vitally important?