Thursday, January 21, 2010

Upper Deck is No Stranger to The Courtroom

The trading card market is all about one thing and one thing only. Money. And lots of it. Over the last year or so Upper Deck has defended themselves in court from various injunctions and lawsuits ranging from copy right infringement over the 2009 O-Pee-Chee design, to counterfeit Yu-Gi Oh cards.

In recent weeks there has been much speculation, rumor and innuendo regarding the lack of preview images and marketing collateral related to Upper Deck's 2010 Baseball Cards.

I'd like to weigh in with my own two-cents. In reality, there can only be one plausible reason to delay the release of sell sheets to distributors and dealers or product details to consumers and that reason is Upper Deck is about to challenge the "exclusive" licensing deal as an unfair monopoly. Instead of tipping their hand and facing an injunction or cease and desist order, it's easier for them to apologize later than to ask permission now. In legalese that translates to, instead of filing suit challenging the ruling directly, I have a feeling Upper Deck will release 2010 baseball cards with MLB logos and then respond to the inevitable lawsuit that will be filed by Topps.

Legally, ordering a recall or proving damages is much more difficult than having an injunction issued forbidding Upper Deck to release their product if they made it known ahead of time that they planned on ignoring the exclusive licensing deal.

I very well could be wrong but I envision a major legal battle is brewing between Topps and Upper Deck.


Lonestarr said...

Exciting times...

Ryan Cracknell said...

If they are going to challenge the exclusive contract, how do they hope to win when they have an NHL exclusive?

reoddai said...

Ryan Cracknell said...

If they are going to challenge the exclusive contract, how do they hope to win when they have an NHL exclusive?

I'll +1 that. If they follow the strategy that you outline above, wouldn't that set a precedent against them for their own NHL exclusive? This tactic might either protect that NHL exclusive or bust it wide open. I guess it depends on how important Upper Deck values the baseball market compared to the NHL market.

Joe S. said...

I just think it'll be funny as hell if they give a big "F&@! YOU" to MLB and go ahead and release cards with logos. May buy a pack just in case it turns into a major shit show, just so I can say I was there.

Rob- AKA "VOTC" said...

The question is- Did anyone legally challenge the NHL exclusive?

Todd Uncommon said...

I think that this is fairly astute assessment, and not outside the realm of possibility.

I'd even call it a masterstroke to release license-violation cards, because you know the publicity would be huge, they'd be dramatically "pulled" from the market by injunction, causing well-hyped, fakey scarcity.

However, there are some mitigating factors that would make it extra risky to do right now, especially for Upper Deck:

1) MLB is a legal monopoly, and with that status they are given significant leeway about how they protect and distribute their brand and trademarks.

2) Upper Deck is already in the damages phase in the lawsuit with Konami. A willful misuse of trademarks and logos by Upper Deck would be dangerous, especially given the company's dodgy practices both in the recent and distant past. Begging the court for forgiveness at this point might not get them much of that at all.

3) If indeed there could be a slippery-slope against exclusive licenses in the hobby (and potentially, across-the-board) if a challenge against the MLB were to prevail, it would take a large amount of time to sort out the outcome of that crater. One helpful fact for Upper Deck is the NHL Puck Attax from Topps. Yeah, it's a "game", but it dances very close to causing problems with the Upper Deck exclusive card license.

4) Lastly, American Needle looks unlikely to prevail against the NFL in its attempt to break an exclusive apparel license with Reebok. The NFL does not have the same level of anti-trust protection that MLB does, and the Supreme Court doesn't appear to want to change the tide on this one.

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