Implications of UD vs. MLB case will be huge

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 MLBLOGO.jpgrecap. 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
UPPER DECK NEW logo.jpgand 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
know it.

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.   

4 thoughts on “Implications of UD vs. MLB case will be huge

  1. I’d like to see the exclusives end, but for some reason I have a feeling UD’s chances in this are pretty slim. It’s one of those cases that could change everything and that doesn’t inspire optimism for me. Those cases usually fail, hehe.

  2. Andy S on said:

    I really don’t see how UD can win this case. Those logos are copyrighted by the league and can’t be used without the permission of MLB. That permission wasn’t given. Sure, they can release products with the player names and cities on it, but if the courts let them get away with using a copyrighted logo without permission it can change MANY legal battles, not just sports cards. I’d be able to see a laptop that says DELL on it without it being made by Dell or Dell making any money on it. I really can’t see this holding up and I am surprised that UD decided to go this route.

  3. David C. on said:

    In the end the collectors will decide once and for all. If they don’t buy the product it won’t matter will it?

    Personally, I think that if any part of the MLB logo is showing then UD will not win this case. Can we picture sets full of cards that look like the infamous 1961 Topps Baseball? Ugh!

  4. I think this could bankrupt Upper Deck iF THEY PRINTED ALL THESE CARDS ,paid players and then have to pay a fine.They have exclusive rights to hockey cards(which I dont like)they should know how this works.I know its not as much money but how would they react if Topps or Panini tried this with Hockey Cards?