MLB Properties settles trademark lawsuit with Upper Deck


Major League Baseball Properties settled its trademark infringement lawsuit against Upper Deck on Wednesday.

MLBP released a statement detailing the non-confidential portions of the agreement on Wednesday evening.

“Our settlement in the case against Upper Deck is a clear and decisive victory for Major League Baseball,” said Ethan Orlinsky, Senior Vice President and General Counsel, Major League Baseball Properties.  “Upper Deck will be unable to release baseball trading cards that incorporate Major League Baseball’s intellectual property in the future.  The real winners today are the millions of fans who collect baseball cards.  They will be able to clearly identify official Major League Baseball trading cards without any confusion.”

Here is a summary of the non-confidential portions of the settlement:

— Upper Deck will pay MLB Properties more than $2.4 million (the entire amount in dispute) for Upper Deck’s 2009 debts.

— Upper Deck will pay MLB Properties a substantial sum of money for the unlicensed cards it sold in 2010.  The specific sum of that payment is confidential.

— Upper Deck has agreed not to issue any additional releases of infringing cards.  Last year it issued 15 baseball card releases and there are currently only three infringing releases that are in distribution in 2010.

— Upper Deck agreed it will not make any new sets of cards using MLB logos, uniforms, trade dress, or Club color combinations.

— Upper Deck also agreed it will not airbrush, alter or block MLB marks in future products.

— Upper Deck must receive approval from MLB for the use of baseball jerseys, pants, jackets, caps, helmets or catcher’s equipment in future products featuring players.



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  1. John Bateman 3 March, 2010 at 17:58

    It probably is not a coincidence but Topps scooped up USA Baseball exclusive today. Upper Deck is out of business for a while in Baseball

  2. Mark Duell 3 March, 2010 at 19:24

    I am disappointed Upper Deck caved in. MLB thinks we are a bunch of confused rubes.

  3. chrisolds 3 March, 2010 at 20:58

    Perhaps Upper Deck didn’t cave? Perhaps the settlement wasn’t as costly as it might/could have been?

    If they thought their case was air-tight, why settle unless it’s not as much of a financial beating as you thought it might be? (Or perhaps you weren’t totally sold on your case…)

    I have no firm facts to base that on … just a gut feeling/reaction to your comment, Mark.

  4. ToddUncommon 3 March, 2010 at 23:42

    This outcome is not much of a surprise. UD could have had a reanimated Johnnie Cochran on their side and they still would have lost. Just another string of indefensible positions that came out of bad ideas from UD.

    The best news is that there’s no silly recall of infringing product.

    My guess is that MLB Properties is all too happy at this point to take whatever portion of 2010 UD product sales as its confidential “substantial sum”.

    It would be nice to see UD turn a corner, take a lesson from these courtroom defeats, and finally spend more money in their art department than on legal.

  5. Mark Duell 4 March, 2010 at 06:40

    Chris, I agree that settlements are done for a number of reasons, including cash considerations or their feelings of the case on the merits. As an IP lawyer, I know how these things work. I just feel MLB properties is overreaching here, the reasoning and statements from MLB makes it sound like the only baseball card collectors that they care about are fourth graders, and the quality and customer service from MLB’s preferred maker has been awful (you should see the test pattern cards that I pulled in 2010 Heritage). The idea of MLB granting an exclusive to Topps after their business partner, the MLBPA, renewed Upper Deck, strikes me as causing greater problems in the marketplace than the two manufacturer system ever did.

  6. Dan 4 March, 2010 at 12:17

    I would’ve liked to see the legal question play out in court — i.e., does it infringe MLB’s trademark rights in a team’s logo to show on a player’s baseball card the logo that normally appears on his uniform?

    I’m not at all sure that it is an infringement. Trademark owners intentionally put their marks out in commerce and have only a limited right to prevent the mark’s re-publication [normally only to prevent confusion as to the source of the product that’s branded w/the mark or to prevent the false impression of association or sponsorship]. If there ain’t any confusion there ain’t any infringement. MLB has a better dilution argument but, for some reason, it did not present it in court with any oomph or support.

    In any event, I bet that the confidential amount UD paid to resolve the 2010 card dispute is quite likely the license fee that it already budgeted for its 2010 MLB license.

  7. Jason 10 March, 2010 at 17:21

    UD has done too much damage to the industry. They flooded the market with sub-prime player cards. They are nothing but a bunch of sue happy idiots over in Las Vegas/Carlsbad… I personally try to steer clear of UD products! I have 1 UD card and its a 06 Exquiste Ken Griffey Jr Endorsed Emblems!

  8. Glen K 12 March, 2010 at 10:46

    Upper Deck was the start of the downfall of baseball card collecting. Premium quality cards at a premium price. They took trading away from the kids and placed it into the hands of wealthy collectors.
    Stick with Topps, true card collecting company.

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