The listed product, a FLIR E4 upgraded to an E8 are all plainly counterfeit goods, as the sellers are selling goods that are counterfeit in that they are not authorized by the Manufacturer FLIR Systems. Further, the Seller is violating numerous laws in its willful selling of the counterfeit goods, including, but not limited to:
The goods are unmodified FLIR hardware, so it's not counterfeit, they will have the burden of proof that the actual device is a copy, as far as not being authorized there is no dispute there but being the legal owner he can sell it.
I'm not an authorized dealer of my car, but I can sell it to whoever I want even if I upgraded parts of my car including the ECU, super chargers or any other non authorized third party improvements.
1. Violation of the Federal Copyright Act - The software on FLIR’s products is protected by copyright. See 17 U.S.C. § 101 et seq. Federal law prohibits unauthorized copying, reproduction, manipulation, modification, and commercial use of such software without FLIR’s permission. Id. § 101. Because FLIR has not granted the Seller such permission, Seller’s manipulation and modification of FLIR’s software, including its source code, to purportedly “upgrade” FLIR E4 devices for commercial profit is a willful violation of these laws.
As far as I know, nobody modified the software. The actual executable remains untouched. Further, there are provisions in Sec. 103(f) of the DMCA (17 U.S.C. § 1201 (f)) stating that if you legally obtain a program that is protected, you are allowed to reverse-engineer and circumvent the protection to achieve the ability to achieve interoperability of computer programs, allowing the legal owner of the non-counterfeit device to make the software communicate with a third party software to achieve such interoperability. Maybe a grey area, but the burden is on the prosecution.
2. Violation of the Federal Trademark Act and the Federal Lanham Act - Absent special licensing arrangements, FLIR has not authorized Seller to use its proprietary trademark(s) in connection with third party products and services, much less so for items that are being passed off for profit as official FLIR products when they are nothing of the sort.
I guess then I can't sell a Honda by name if Honda doesn't give me authorization to sell it under that badge name. They are really reaching here since it's a FLIR product and the burden is on them to prove that it's not a legally obtained product. As long as the seller doesn't claim he/she is an authorized dealer they can modify it. This is as ludicrous as some car company preventing me to sell my car because I use tires and spark plugs that are not OEM.
3. Violation the unfair competition and false advertising provisions of the Federal Lanham Act, 15 U.S.C. § 1125(a)(1)(B) – Seller’s claim that the products sold – a hacked version of FLIR’s E4 marketed as a “FLIR Special Edition” or “E8++” – is superior to FLIR’s own E8 is baseless, false and misleading, and thus violates the unfair competition and false advertising provisions of the Federal Lanham Act.
They have the burden of proof for this one to counter act that the product is actually not superior. But the seller would be stupid to actually say it's better than an E8 when they just have to claim the improvements over the original equipment. It will be like adding a super charger to a car, you can't claim is a different model but the same model with enhancements.
4. Violation of FLIR’s Terms of Use – the product being offered is not a FLIR E8, the seller has impermissibly hacked, manipulated, and passed off an E4 as an E8+ to unsuspecting consumers. Introducing into the marketplace these unauthorized adulterated cameras under this false moniker will inevitably cause consumer confusion and injury, deceiving purchasers and users alike into believing the camera is authorized and backed by FLIR’s product support.
The also have the burden of proof that the consumers are being mislead about a sale of a product, but the seller should be honest and don't claim it's not an E4 since it is an E4. But I don't see why the seller couldn't state the improvements over the original equipment.
Let's put it this way. I can buy a 35mm camera and use the body combined with optics made by me or a third party and the internal mechanics done yet by a different manufacturer, and I still will be able to sell it. I just can't claim it's the original camera or that it has any warranty of any kind.
Any legal action could bring a class action lawsuit for people that paid more for the same hardware sold at a fraction of the cost, if the court findings are that it's actually the same equipment.
All that said, if FLIR was to offer the software upgrades and be upfront that the hardware is the same, then that will give them more rights, but that is not the case. A similar thing will be to get a computer with some commercial version of an operating system and modify it to a different version of the operating system that the vendor offers as an upgrade. That still doesn't prevent a user to put their own software on such system as long as it's not the original and doesn't contain modified original code on it, but say we write our own firmware from scratch. That is totally legal as well so they have to thread lightly.
Manufacturers will have a field day if what they claim was to be upheld by the court, it will mean that if I had an electrical oven and the heating element broke I couldn't replace it with a third party one and still be able to sell it when I wanted. There will be thousands of court precedents.
Disclaimer: I'm not a lawyer so this is just my opinion and not legal advice.