For those of you interested in following the recent developments in the
Upper Deck vs. MLB lawsuit, good luck. It seems anyone with any
information regarding the lawsuit has been taken in by the Witness
Protection Program, with officials from all of the parties involved
going the “no comment” route more often than Peyton Manning calls audibles.
If you haven’t been following the story, I’ll give you the short-version recap. Last week Upper Deck released two of its baseball products,
Ultimate Collection and Signature Stars, despite not being licensed by
Major League Baseball. UD does have a license (MLBPA) to use the player images
seen on cards but because Topps has the exclusive license with MLB and
UD does not, the UD cards aren’t legally allowed to use the team’s
trademarked nicknames and logos. So UD produced the two sets with a
written disclaimer that reads: “NOT authorized by Major League Baseball
or it Member Teams” placed on the packaging and each of the sets’
They also carefully selected the images they used so that the nicknames
and logos used on the player’s jerseys were partially hidden in an
effort to comply with the licensing restraints. Lastly, the cards never
used the team nicknames which are also trademarked, only listing a
player’s team by the city (For example, a Prince Fielder card lists him as a first baseman for Milwaukee with no mention of the Brewers). While covered (or partially covered) on the
jerseys the logos are clearly visible in the player’s caps. Another
difference on the UD releases is the absence of an MLB logo anywhere on
the card but other than those subtle changes, none of the releases
appear much different from their licensed Topps’ counterparts.
Almost as soon as the products hit the store shelves, distributors were
asked by MLB to stop selling the products because they weren’t licensed
and MLB decided to sue Upper Deck for trademark infringement
violations. The lawsuit was made official early in the week of Feb. 1
but by week’s end distributors were again selling the unlicensed products because MLB was denied the Temporary Restraining Order
(TRO) it was seeking by the courts.
When the products were first released, I indicated that Upper Deck must
be banking on a legal loophole or they wouldn’t have stirred the pot by
releasing the products in the first place. Fresh off their court battle
with Konami in which they apparently lost several millions, few would
imagine UD would want to head right back to the courtroom for another
costly battle if they didn’t think they had the necessary ammunition to
come out victorious. And now that the TRO has been denied, it appears
that perhaps Uppper Deck does have a way around the lack of MLB license
issue. And if they do, it could change the sports card landscape as we
If, and because this case will likely linger in court for several
years, that’s one big if, the court finds that companies are legally
able to produce cards with only a Major League Players Association
license and not an accompanying license from the league itself, the
case will produce ramifications that ripple through the entire world of
professional sports. One important change a court ruling in favor of UD
would produce would be a huge shift in importance of the MLBPA license. Moving forward, it would then give the players all the leverage in dealing with card companies instead of the league as it is now. It would basically make the league license an unnecessary expense with the MLBPA license fees likely soaring out of control soon after. It would also force the leagues (MLB, NBA, NHL) that have signed exclusive deals with one specific card company to refund the huge amonts of dollars they receive annual, thus making exclusives obsolete.
And how would a favorable UD decision in court affect other areas of the sports world? As it stands now for example, team stores and pro shops pay large sums of money each year to sell officially licensed team apparel. If UD wins the case and its found they don’t need a license from the league to sell baseball cards, wouldn’t that then mean that other types of distributors don’t need to be licensed by the leagues to sell their products? Not exactly sure, but I’ll guarantee you if UD wins this case, other companies will be standing in line and challenge the system as well. We’re talking about billions of dollars and a monumental case with implications reaching every avenue of the sports world. And because we’re talking about billions, you can bet that the leagues will do everything in their power to keep things status quo.
I’ll keep trying to get our readers updates on the latest twists and turns of this ongoing saga, but with most of the people involved guarding their words like the government did in the wake of 9/11, it could be tricky.