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Wednesday, March 03, 2010
Settlement between MLB Properties and Upper Deck

Maury Brown at the BizofBaseball blog is reporting that MLB Properties and Upper Deck have settled their recent trademark infringement lawsuit. The terms of the settlement are detailed here, but in short Upper Deck has effectively agreed to cease its accused conduct in the future, and agreed to pay MLB Properties "significant" damages for its unlicensed 2010 products. Ethan Orlinsky, Senior Vice President and General Counsel, Major League Baseball Properties declared the settlement to be a "clear and decisive victory" for MLB. Based on the initial details of the settlement, I would have to agree.


This may explain why a number of my clients who have photographed NHL games for Upper Deck have not been paid for many months. It obviously has been saving its cash to pay major league baseball. Will it ever be able to catch up?

Anonymous Anonymous -- 3/03/2010 7:49 PM  

Nathaniel -

Thanks for the post. This seems to indeed be a "clear and decisive victory" for MLB, but it is also a "clear and decisive loss" for consumers of baseball cards. I have been personally in that category for over 50 years as I turned 59 yesterday.

This is the largely ignored outgrowth of the American Needle decision to date - the impact on consumers. As the NFL went to only one official producer of hats with NFL logos, MLB quickly seized the opportunity to make Topps its only official producer of cards. This happened despite Upper Deck holding a license from the MLBPA. By the way, the licensing revenue has been used in the past by MLBPA as a "strike fund." This now returns Topps to the "monopoly" position held by the company prior to the Fleer litigation. I put monopoly in quotation marks because like most things there is some nuance and qualification that is in order. If you are interested in this topic I recommend that you explore the writings related to the history of law and the baseball card industry by Gordon Hylton, my good friend at Marquette. It will be interesting to watch what happens to the price of baseball cards now that Upper Deck has folded its tent. Will the NHL, NBA, and NFL follow the same path?

Although the single entity will not protect Topps from a section 2 violation, who will pursue that now that Upper Deck is leaving the marketplace? Donruss and Fleer were, in my opinion, forced out by the normal competition in the marketplace. Now Topps reigns supreme again.

Blogger Ed Edmonds -- 3/04/2010 10:22 AM  

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