There’s a chill in the air, a spring in your step, and a couple extra dollars in your pocket. Why? You just made a killing selling some of your custom-made, NFL-themed knit hats, sweatshirts and diaper covers to Etsy shoppers who love the home team as much as you do.
Unfortunately, your innocent Etsy or eBay shop may soon face an abrupt cease and desist letter from the NFL, demanding that you stop using its licensed logos and commercial likeness, or else.
You wonder, “How can this be? People make custom sports gear all the time! Why am I suddenly the target of a legal smackdown by the NFL’s powers that be?”
The answer is simple: money.
NFL intellectual property basics
The NFL and professional, collegiate and commercial sports companies like Under Armour and Nike make a lot of money off the recognizable logos, slogans, colors, mascots and players belonging to the team, and they do not take kindly to allowing other enterprises, no matter how small, to use their intellectual property without a license.
The following discusses the general laws surrounding the use of sports teams’ intellectual property, as well as scenarios where the unlicensed use of a team logo would fall within the realm of legal reproduction. So, before you create or purchase your next football-themed baby ensemble, review these guidelines on legal and illegal logo-sharing.
Selling a team’s logo or likeness without a license is illegal
This is the general premise: You cannot make money off a sports team without permission from that team. Team-themed kids clothing, baby outfits, knickknacks, gifts, shirts, blankets, dog dishes, flags, decor, party favors, et cetera are illegal to profit from if you do not have a license from the NFL.
Likewise, purchasing unlicensed goods from Etsy or similar shops could get you into hot water, although this scenario is far less likely. At worst, if the unlicensed gear is confiscated by authorities, you will have difficulty obtaining a refund. At best, you might get away with it.
However, NFL authorities are regularly scouring stadium-side stands and online shops for counterfeit and unlicensed merchandise, and these vendors are immediately shut down if commercial activity is afoot.
How much trouble does a seller face for selling unlicensed gear?
Copyright and trademark infringements involve majorfines and possible jail time. A copyright violation, which involves the unlawful use of artistic or written work, carries a penalty of up to $150,000 per infringed work if the misconduct was willful and intentional. Likewise, a trademark violation involving the unlawful use of a word, name, symbol or device carries civil penalties matching the extent of the infringement, which hinges on whether the infringement is likely to cause consumer confusion.
Historically, courts have applied any of the following factors to decide if a reasonable consumer would be confused by the use of a certain logo or likeness:
- Strength of the trademark: Is it well known and recognized?
- Proximity of the fake goods to the real merchandise
- Similarity of the trademark to the knockoff
- Evidence of actual confusion by shoppers
- Marketing channels used by the alleged infringer
- Degree of scrutiny likely to be exercised by the consumer over whether the item is infringing on trademark rights
- Infringer’s intentions when creating the item, and
- Likelihood of the expansion of product lines.
How close is too close?
In many instances, a seller may simply combine two or three colors without using a logo and sell the item as a “Denver Broncos knit hat” or “Baltimore Ravens custom-made headband.” In these examples, the seller has merely united orange with blue or purple with black to create a product likely to sell with a certain fan base. Is this illegal?
It depends. Would a reasonably informed shopper be confused by the validity of this product? Could a shopper aiming to purchase licensed, official gear be diverted by this product? Blatant use of a logo or slogan is a clear violation. Use of a full team name is also a clear violation. Use of a team name with colors is unlawful; however, use of colors alone without any actual mention of the team may be acceptable, provided the seller is not actually touting the product with the team’s name attached. Therefore, the above examples would probably be an unlawful use of the team’s name for commercial gain.
Keep in mind that the law permits you to create, customize and cavort in your homemade team gear to your heart’s content as long as you don’t make a profit. So, while your Etsy enterprise is probably a bad idea, your newborn baby won’t face an injunction for wearing his custom-made team onesie to the next neighborhood barbeque.
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