Fearless 2012 Legal Predictions for the Trading Card Industry

Fearless 2012 Legal Predictions for the Trading Card Industry

Ahhh, a new year. Time to begin again. Again.

2011 saw an overboard of hobby-related lawsuits, including Topps v. LeafUpper Deck v. Blowout Cards, and Upper Deck v. Upper Deck. There was also a false marking suit (or two) against Topps, Panini took on Art of the Game over Kobe Bryant autograph, a patent infringement action against, well, just about every body. That's not including the suits that were already ongoing like Kareem Abdul-Jabbar v. Upper Deck, Buzz Aldrin v. Topps, Upper Deck v. Endurance and Aniplex v. Upper Deck.

With all these lawsuits, it's amazing that any of these companies had time to make cards last year.

What does 2012 hold? I'm a big fan of regressing toward the mean, so 2012 should in all likelihood be an average, to a below average year of legal activity. The flock of cases heading into 2012 has already thinned. Panini and Art of the Game settled. The false marking suits against Topps are over. And Aniplex v. Upper Deck looks to be finally resolved. But, given how slow court cases are, 2012 could be as active since the parties will just be getting into the meat of the cases this year.

In honor of the New Year and the time for making resolutions, I have made some “legal" predictions on the more interesting cases. These include how and when I think these cases will resolve themselves.

Topps v. Leaf

Taking a page from The Untouchables, the ghost of Mickey Mantle comes in with a baseball bat and goes all Al Capone on everyone.  I mean, look at his picture on the card. I could see it happening.

1952 Mantle Card Image

Just kidding. This case should settle this year. And confidentially. It is not a strong case for Topps and negative rulings could give a road map to competitors on how to safely market buybacks and cut signature cards. It's better for them to settle the case, keep everyone wondering about who won, and keep up the murkiness of buybacks.

Upper Deck v. Blowout Cards

There's not much humor in antitrust cases. So, let's just say this case will confidentially settle this year. Antitrust cases are notoriously expensive. When one of the parties feels too much of a pinch, this one will go away.

Aldrin v. Topps, Abdul-Jabbar v. Upper Deck

Both of these cases will address whether or not a player's likeness can be used on cards without compensation. What's interesting about them are the First Amendment concerns raised in the Aldrin v. Topps' court order, which is now being dealt with on appeal. My prediction for a resolution? At some point this year, both courts will issue final rulings that contradict one another.

Upper Deck v. Upper Deck

Dr. Phil is called in to counsel the Upper Deck companies through their family squabble. During mediation, he signs 1,000 patch cards made from his suit. The card still has a vague disclaimer that fails to confirm whether the suit was an actual “game-used" Dr. Phil suit.

Really, I hope this case does not go way and continues to be as entertaining in 2012 as it was in 2011. My real prediction, and this is a safe one: the lawsuit devolves into name-calling and more wackiness. And two more articles from me this year.

The information provided in Paul Lesko's “Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

The views expressed in the “Law of Cards" column are solely those of the author and are not affiliated with the Simmons Law Firm. You should not act or rely on any information in the “Law of Cards" column without seeking the advice of an attorney. The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on websites or advertisements.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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