Not every unauthorized seller is selling fakes. Some are selling genuine products through channels the brand never approved: overstock diverted from a distributor, regional inventory resold across borders, last season's line liquidated to a discounter. That is the grey market. It annoys brands, undercuts pricing, and confuses customers. But it is not counterfeiting, and treating it like counterfeiting wastes enforcement budget and loses cases.
A counterfeit is a fake: a product that was never made by the brand, bearing the brand's trademarks without authorization. A grey market product is genuine: made by the brand, sold once through a legitimate channel, then resold somewhere the brand did not intend. The physical product in the customer's hands is identical to the one on the brand's own shelf. The problem is the channel, not the item.
This distinction decides which legal tools work. Counterfeiting is trademark infringement, and marketplaces will act on it fast with a proper notice. Grey market sales usually are not infringement at all under the first-sale doctrine: once the brand sold the product, its right to control resale is largely exhausted. Filing counterfeit notices against genuine goods is not just ineffective; it can expose the brand to liability for misrepresentation.
The listings look identical. An unauthorized seller with no brand relationship, prices 30 percent below MAP, stock photos instead of originals, slow shipping. Those are counterfeit tells and grey market tells at the same time. Enforcement teams under pressure to show takedown numbers file first and verify later, and the notices go out against sellers who are, inconveniently, holding real inventory.
MAP violations make it worse. A seller breaking minimum advertised pricing feels like a bad actor, and teams reach for the strongest tool available. But price cutting is a distribution problem, not an authenticity problem. The fix is contractual, through the distributor who leaked the inventory, not a takedown notice against the reseller.
Verify authenticity before choosing the tool. A test buy is the fastest way: order the product, inspect it against known genuine markers, and only then decide. If it is fake, file the counterfeit notice with the test-buy evidence attached. Marketplaces move fastest when the notice includes proof, not just an assertion.
If it is genuine, shift to the distribution channel. Trace the inventory back through lot codes and distributor records to find the leak, and enforce the distribution agreement there. For the listing itself, the available tools are narrower: MAP policy enforcement where the marketplace supports it, brand registry controls over the product page content, and in persistent cases, a direct conversation with the seller about authorized distribution. Less satisfying than a takedown, but it is the approach that survives legal review.
The triage only works if the people filing notices know the difference. Train enforcement staff on the three screening questions: is the product plausibly genuine, does the seller behave like a reseller or a manufacturer of fakes, and what does the test buy show. Make the test buy the default step before any notice goes out, with a documented exception process for obvious counterfeits. Teams measured on notice volume will always over-file; measure them on upheld notices instead, and the grey market stops clogging the queue.
Can grey market goods still harm the brand?
Absolutely. Stale inventory, missing warranties, no customer support, and pricing chaos all damage the brand even when the product is real. The harm is genuine; only the remedy differs.
What about "not for resale" labeling?
It helps with the distributor conversation and does almost nothing against the end reseller. Courts have repeatedly treated such labels as contract terms binding the distributor, not property rights binding the world.
How do you tell from the listing alone?
You usually cannot, which is the point. Pricing and seller behavior are screening signals, not verdicts. The test buy is the verdict.