I am not so sure, YAG, that the first sale doctrine is an "airtight defense," but I agree it is probably the only defense TMLgirl would have if the NHL decides to pursue the matter.
And, despite what TMLgirl may have heard, I am also not so convinced that the NHL will simply "back off" and allow her to sell her altered jerseys. I hope for her sake that that is the case.
There is a "material difference" exception to the first sale doctrine. This exception has been recognized by the 1st, 2nd, 3rd, 5th, 9th and 11th Circuits and the Federal Circuits. I have listed just a few of the cases where this is discussed:
Davidoff &CIE SA v PLD International Corp, 263 F.3d 1297 (11th Cir 2001): "Resale of genuine trademarked goods generally does not constitute infringement. This is for the simple reason that consumers are not confused as to the origin of the goods: the origin has not changed as a result of the resale. . . The [first sale] doctrine does not hold true, however, when an alleged infringer sells trademarked goods that are materially different than those sold by the trademark owner. Our sister circuits have held that a materially different product is not genuine and therefore its unauthorized sale constitutes trademark infringement."
Montblanc-Simplo GmbH v Staples Inc, No. 01-10235-DPW, 2001 US Dist. LEXIS 7905 (D. Mass May 3, 2001): "The mere showing of a material difference between the goods simultaneously sold in the same market under the same name creates a presumption of consumer confusion as a matter of law."
Societe Des Produits Nestle, SA v Casa Helvetia, Inc, 982 F.2d 633 (1st Circ 1992): A material "difference is any difference between the registrant's product and the infringing product that consumers would likely consider to be relevant" when purchasing a product.
Intel v Terabyte International, Inc, 6 F3d 614 (9th Cir 1993): "Terabyte's interpretation of the Lanham Act focuses only on the identification function of the trademark and improperly ignores the goodwill, reputation, and consumer protection functions associated with a particular trademark."
El Greco Leather Prod Co, Inc v Shoe World, Inc, 806 F2d 392 (2d Cir 1986): "One of the most valuable and important protections afforded by the Lanham Act is the right to control the quality of the goods manufactured and sold under the holder's trademark."
Again from the Davidoff court: "The caselaw supports the proposition that the resale of a trademarked product that has been altered, resulting in physical differences in the product, can create a likelihood of consumer confusion. Such alteration satisfies the material difference exception and gives rise to a trademark infringement claim."
See Section 32 of the Lanham Act, 15 USC §1114(1) and Section 43 (a)(1), 15 USC §1125.
I think the NHL has bigger fish to fry, like all the exact replica fake jerseys that actually get sold at sports stores!