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Selling handmade items with a licensed product in it.

Milwaukee, WI |

I want to make a product utilizing major league baseball products. I would purchase the product from a retailer and attach it to my product. I would not market or advertise the product being a "Milwaukee Brewers Shelf" but rather a "Baseball Shelf" customizable with your favorite mlb team logo ball. I can send a picture of the product if interested. I would also go further and put a disclaimer in my product description that this is not an officially licensed product, but rather made with products that are officially licensed and we are in no way affiliated with or represent any mlb team. Can I do this legally.

Attorney Answers 2


Probably, since it sounds like you're taking pains not to trade on the IP belonging to anyone else. Using any logos or trademarks or service marks in any ads or photos, even those that show examples, of your product could be dicey, but as long as you're careful not to do that this would be an ok use.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't 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.

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I don't think you can do this without obtaining licenses from MLB and perhaps individual teams. Your "shelf" is being marketed with reference to MLB. MLB, itself, is a trademark. Further, you are marketing your product for use in combination with other trademarked products. In practical effect, you are trying to market your "baseball shelf' by associating it with trademarks owned by others. Anytime someone attempts to commercialize a product by associating it with trademarks owned by others, there is a substantial risk that you could be accused of trademark infringement. MLB is very aggressive in enforcing its IP rights, and you can expect that if you market this product, MLB will take action to stop you from doing so without a license.

There may be a way to market this product that is less troublesome. Perhaps you can say that your product can be used for displaying baseballs associated with your favorite time. But as soon as you use the term "MLB" or "your favorite MLB Team", you are asking for trouble.

Further, my guess is that you have other IP problems that you have not thought about. Have you retained counsel to conduct a patent search to see that your "Shelf" does not violate patents held by others? Also, does hour "shelf" for displaying baseballs violate "trade dress" associated with similar products marketed and sold by others (including potentially MLB)? One thing is absolutely sure--you would be very foolish to invest a lot of time and money in this project without first retaining and consulting with experienced IP counsel. Moreover, I always encourage people in your situation to get more than one opinion from more than one qualified IP lawyer. Lawyers sometimes disagree on these matters, and often there is no clear right or wrong answer.

Indeed, the practical problem that you face is that the law operates in shades of gray--often times reasonable legal minds disagree on issues such as this. One thing that is clear, however, is that nothing can stop MLB from suing you if it believes you are violating its rights. And even if you have valid defenses and you win the case, law suits are expensive and there is only a very small chance that a defendant who wins such a case can recover its costs and attorneys fees. Thus, if you conduct this project without a license, you are taking a considerable risk.

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