75 Am. U. L. Rev. 1097 (2026).

Abstract

The rapid growth of the luxury resale market has heightened tension between trademark holders and secondary-market sellers. Courts are increasingly left to apply the material difference exception to first sale doctrine defenses, to find trademark infringement when resold goods differ from the original product, even in de minimis ways. Originally designed to protect consumers from confusion where post-sale modifications affected product quality or safety, the exception has evolved into a broad enforcement tool that luxury brands leverage to challenge resellers over minor or cosmetic alterations. In the luxury watch and accessories markets in particular, courts have deemed even minimal differences material, allowing brands to exert significant control over downstream resale practices, thus potentially suppressing lawful secondary markets. This Comment argues that courts should replace the current material difference inquiry in infringement proceedings with a structured substantial similarity test. Under that framework, infringement would turn on whether post-sale alterations meaningfully affect a product’s function, brand signal, or likelihood of consumer confusion through lack of disclosure. By cabining liability to genuinely confusing product differences, this approach would better protect consumers, preserve legitimate resale, and align trademark law with the first sale doctrine’s commitment to competition and the free alienability of goods.

* Senior Federal Circuit Editor, American University Law Review, Volume 76; J.D. Candidate, May 2027, American University Washington College of Law; B.S., Business Administration, 2024, American University. Special thanks to Professor Christine Farley for serving as my faculty advisor on this piece. I am also incredibly grateful to my Note & Comment Editor, Kenzie Vallejos, for her thoughtful feedback and guidance, and to my Final Editor, Claire Rattan, and Senior Technical Editor, Lydia Losch, for their invaluable assistance. Finally, thank you to my parents, Michael and Kristin, for their unwavering love and support in all my endeavors, and to my fiancé, John, for his steadfast encouragement and belief in me.