UD's latest miscue makes you wonder about its future

Let me preface the following by saying I don’t normally comment on the
hobby’s legal matters because quite frankly, I don’t feel qualified to
do so. Much of the legalese that peppers the press releases often
leaves me more confused than I am after watching an episode of “Lost.”
And I’m talking about those recap episodes where they try and clear up
any confusion with the “Lost for Dummies” subtitles running along the
bottom of the screen.

But after reviewing all the facts (well, at least the facts that we
have MLBLOGO.jpgaccess to) in the MLB-Upper Deck trademark infringement battle
that came to an abrupt ending March 3 with an out-of-court settlement
that left MLB grinning and UD and all their fans out there scratching
their heads, I’m scratching my head as well.

To recap, the suit, in which Major League Baseball Properties alleged
Upper Deck
had broken trademark infringement laws by producing three unlicensed
card products released early this year, was settled out of court for an
unspecified amount (UD was forced to pay the $2.4 million debt it owed
MLB from 2009 plus a substantial amount in damages for 2010
violations). The suit ends with UD being allowed to continue
sales of the three Upper Deck baseball card products, 2009 Signatures
Stars, 2009 Ultimate Collection and 2010 Series 1 Baseball, but will be
prohibited from producing any other baseball brands moving forward.

Despite the fact that the case never made it to its scheduled April 19
court date, we definitely got a clear-cut winner. MLB Properties got
exactly what it wanted and wrapped things up prior to Opening Day which
was likely just a bonus from their perspective.

It didn’t appear to be a fair fight from the outset, and as it turned
out, it wasn’t. From where I’m sitting, it appears Upper Deck put on
its best poker face and went all in with a pair of deuces with MLB
calling the bluff while sitting on a pair of aces. But the strangest
part of the whole thing was because UD had gone down a similar road in
the past and is well aware of the hobby’s history of challenging
exclusivity/licensing laws, but they still pushed all their chips into
the middle of the table.

UPPER DECK NEW logo.jpgTo be honest, when the battle first became public and the details of
the case were sorted out, I defended UD saying “there’s no way they
challenge the system like they are if they don’t have a loophole up
their sleeve that will legally get them around the trademark issues.”
My thought process was: no company in its right mind, especially one
coming fresh off a lost lawsuit (Konami) in which they reportedly
forked over millions), would take on MLB without an ace
in the hole. I initially thought the mysterious “loophole” would be a
significant one and could ultimately change the landscape of the hobby
as well as shakeup the licensing laws throughout the sports world. But
after the quick ruling and subsequent settlement, those predictions
were about as accurate as those who cried wolf over the Y2K scare.

But now that the dust has cleared and the settlement has been resolved
with Upper Deck basically agreeing as part of the settlement to not
produce anything resembling a regular-issue baseball card in the
forseable future, I’m back to scratching my nugget.

The agreement prohibits UD from going the air-brushing route as well,
so unless your a fan of seeing baseball players in their street clothes
don’t expect much out of the UD camp as far as baseball products moving
forward. And for some, that will be fine. But it definitely makes you
wonder what UD officials were thinking when they decided to produce
three different sets of the unlicensed baseball cards and take on the
mighty MLB boys doesn’t it? When I come up with that ace in the hole I
referred to earlier I’ll pass it along to you. Until then, we’ll just
have to assume the company might have seen the end of the road coming
and went all in with empty pockets, no gameplan and what appears to be
a very limited shelf life remaining in the hobby. I hope that’s not the case but their actions are very questionable as of late.

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