Hello. if i buy fabric at my local wal-mart with lets say the boston red soxs design on it,

Attorney answers (3)

1. 

   David Madden

   Portland Intellectual Property Law Attorney

   Contributor Level 14

   Answered December 31, 2009 22:20. Interesting question. The Sox would undoubtedly say you can't sell the items you make (without paying them a licensing fee, anyway) but if you ended up in court, you might fare better than the Sox would like. There was a case in 1997 where a company bought fabric with licensed, trademarked art printed on it, sewed blankets out of it, and sold them. The licensor sued to stop them, arguing both copyright and trademark infringement. They lost on the copyright claim, but won on trademark. However, the court suggested that if the sewing company put more conspicuous labels so that consumers wouldn't think the blankets came from the licensing company, they'd be OK.
   
   All of this is to say that it's somewhat risky to do what you're proposing. Even if you might win in court, it's expensive to have to go in the first place.
   
   Note to lawyers: the case is 971 F.Supp 66. I didn't see any subsequent history or cites of it, but I'm having a little trouble with my database service. There might be better cases out there.

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2. 

   Andrew Myers

   North Andover Personal Injury Lawyer

   Contributor Level 20

   Answered January 01, 2010 05:45. When you buy the material your license is for your own private use, and not for resale. So, you can make as many hats or pillows or blankets as you want for your own personal use, and, arguably for gifts for your friends and family members. However, you do not have a license to resell that Red Sox, major league baseball protected logo and you would be liable for statutory damages.
   
   People do this all the time, selling such items at flea markets. However, occasionally they are busted and the holder of the original rights wins 99.99 % of the time in federal court.
   
   This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.

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3. 

   Pamela Koslyn

   Los Angeles Business Attorney

   Contributor Level 20

   Answered January 09, 2010 13:51. My colleagues are right that the license extended by the Red Sox to you, the end user, is that you can make whatever you want out of the fabric for your own use, and the line they draw is that you can't commercially use their fabric to run your own business in competition with them. Look at the fabric's legalese on its packaging - does it limit the use by the buyer?
   
   But isn't your own hat in competition with them? Yes, so their trademark infingement claim seems to be that YOU may know that you're the source of the hat, but those consumers you sell your hats to may be confused and think that the Red Sox made your hats when you actually made them, and if, for example, the quality of the hats isn't as good as the Red Sox thinks they should be, you'd be hurting their trademark by selling these unlicensed hats.
   
   2 practical matters are 1st, lots of people sell these unlicensed products at flea markets and on eBay and their own websites - but that doesn't make it legal it just makes piracy common. 2nd, famous trademark rightsholders are the best and the worst people/organizations you can pick a fight with, because they've got the most desirable property that draws consumers to spend their money, but they've got the biggest war chests to protect to their property and they don't mind overspending on legal fees in relation to the harm in order to make examples of infringers.
   
   Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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