May I Sell Replica Branded Goods Online?

Answered by Shaykh Faraz Rabbani

Question

I sell replica, or “first copy,” branded products—shipped directly from the manufacturer to the customer—and I openly tell every buyer that the item is a copy. Most already know this and buy it precisely because they cannot afford the original, so there is no deception in the sale itself. Given that transparency, is this business permissible? Does infringing the brand’s trademark make it impermissible on its own? And does it matter that local law treats the sale of such goods as illegal?

Answer

In the name of Allah, the All-Merciful, the Ever-Merciful.

Selling a replica is lawful in itself, but selling goods that carry another company’s trademark is not, and your transparency with the buyer does not change that. If the item you ship bears a specific business mark, such as Nike or Gucci, this is impermissible. If it is an unbranded item of similar cut and quality, sold as what it is, you may sell it freely.

You are right that there is no deception between you and your customer, and it is to your credit that you looked at this closely. That closes one door of objection. The Messenger of Allah (Allah bless him and give him peace) said, “Whoever deceives is not of us.” [Sahih Muslim] He said it of a seller who had hidden wet grain beneath dry, so its force is deception of the one you deal with, and your buyer is not deceived. My own reading is that the mark keeps speaking after he takes delivery, telling everyone who sees the bag that Nike made it. That is my reasoning rather than the scope of the hadith, so the ruling does not rest on it.

The heavier matter is the mark itself, and you should know where the ruling comes from. Ibn Abidin (Allah have mercy on him) gives the Hanafi definition of wealth: “What is meant by wealth is what the natural disposition inclines towards and what can be stored against time of need, and the character of wealth is established by people treating a thing as wealth, whether all of them or some of them.” [Ibn Abidin, Radd al-Muhtar] That clause about storing is why the school has generally held that a bare right is not wealth at all, and a trademark is a bare right before it is anything else. What settles it is a considered contemporary judgment resting on that last clause, the one about what people in fact treat as wealth.

Mufti Taqi Usmani (Allah preserve him) makes that judgment in Buhuth fi Qadaya Fiqhiyya Muasira. He grants that the right in a trade name or a mark is in origin a bare right, not settled in any standing object, then holds that registration alters its standing: “it is also true of it that it is stored against time of need, so the elements that confer on a thing the character of wealth are present in it, save that it is not an object standing by itself.” [Taqi Usmani, Buhuth fi Qadaya Fiqhiyya Muasira] He allows dealing in a registered mark on two conditions, the second being that it must not mislead consumers. The Fiqh Academy of the Organization of the Islamic Conference reached the same place at its fifth session in Kuwait, holding that trade names and marks have come to carry a recognized monetary value in contemporary custom because people treat them as wealth, and that “these rights are recognized in the Shariah, so it is not lawful to infringe them.” [Wahba al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu]

Take the mark as the holder’s property, and the settled Hanafi rule follows: “No one may dispose of another’s property without his permission.” [Majallat al-Ahkam al-Adliyya] Reproducing the swoosh without Nike’s leave is taking what is not yours, and full disclosure to your customer does not cure it, because the wrong is not against him. That step is my own, and I would rather you saw it as a judgment than as a line lifted out of an old book.

The law of your country weighs on its own as well. Allah Most High says, “O you who believe, fulfill your binding obligations” [Quran 5:1; Keller, The Quran Beheld], and a Muslim living under a country’s protection has undertaken to keep its laws. Where counterfeit goods are unlawful to sell, you are exposing yourself to seizure and prosecution, and your customers to losing their parcels at the border. That the manufacturer ships directly and you never handle the goods does not lift liability from you.

You may have seen two answers on our site that seem to pull in opposite directions. Mawlana Ilyas Patel (Allah preserve him) permits acknowledged replicas; my own answer on placing a brand logo without authorization forbids it. Read his second condition, and they meet: he permits the replica so long as “one does not falsely hold the original trademark.” A generic garment of the same make, sold as itself, is what he is allowing. A “first copy” bearing the brand’s mark is what I was referring to, and that one stays closed.

The way forward is wide. Source unbranded goods of the same quality from the same factories, price them honestly, and put your own name on them. Many of these manufacturers will ship without any markings at all if you ask. You would be serving the same customer, at the same price, with the same product, and nothing would be hanging over the earnings.

And Allah knows best.

Faraz Rabbani

Related Answers

• How Does Islam View Selling Counterfeit or Replica Goods? — The companion piece this answer itself points to: replicas sold honestly are one thing, counterfeits meant to deceive are another.
• Is It Permissible to Use a Brand Logo Without Authorization? — The other answer this piece references directly, on why a trademark is treated as real, protected property.
• Can I Sell Counterfeit Items on eBay? — Why even an “as-is” listing with a fake company label still counts as deception, not just a labeling issue.
• Does the Illegality of an Income According to the Law of the Land Render It Islamically Impermissible? — A related case on when breaking a country’s law becomes its own religious problem, separate from the underlying work.