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[flappingeaglehat]

Hello I have a question. I am modifying an NFL Philadelphia Eagles hat by attaching a detachable battery powered toy eagle to the top. I also put an NFL licensed pocket size helmet on the toy eagle. Is it legal to resell this item?

I make it clear in product instructions that I am not associated with the NFL or the Eagles and only the cap is licensed, not the bird.

But some friends who worked in retail management told me this is a trademark violation because of the Eagles trademark on the cap. (The caps are authentic NFL caps I purchase at the mall.)

So I looked into licensing with the NFL and you have to have 3 million in insurance, 3 years manufacturing experience, and fill out an annoying 25 page form. I simply don't qualify. (Plus they are not licensing headwear.)

I personally don't think I need licensing or permission. I thought I was just modifying something. And doesn't the first sale doctrine apply?

I equate my eagle hat to adding a pin to a sweater, or glitter to a Calvin Klein shirt, or painting a rainbow on a Dodge Shadow.

Sometimes it is hard to explain a new concept so I have pictures. To see pics of the hat search 214805562 in the "for sale" section of philadelphia dot craigslist dot org (no www). Or you can email me if you need to see a pic. (ceokaren at gmail dot com)

Thanks for any help and assistance you can provide. If you know a good copyright lawyer in the Philadelphia area, let me know.

[JSonnabend]

What you describe should be acceptable under both TM and copyright law, but it's not entirely clear.  The fact that you're essentially reselling properly licensed NFL merchandise should steer you clear of tm issues, I believe.  Similarly, my initial reaction is that your use of any copyrighted works are likely fair use (to the extent that there are protectible copyright interests at issue).

On the other hand, this isn't a case of using licensed fabric to make a pillow, for instance, but of combining licensed end-user goods to make a new product.  Whether or not that's enough to pull you over to the wrong side of the issues I don't know.

You'd be well advised to speak to a qualified IP attorney who can research the issue for you.  I handle these types of matters, as do others here.

You can also see TabberOne's excellent website for some related information.

- Jeff