Law of Cards: 2013 Predictions Score Card, and 2014 Predictions

Law of Cards: 2013 Predictions Score Card, and 2014 Predictions

At the end of 2012, I made four predictions about what could happen in trading card lawsuits in 2013.

Let's see how I did.

2013 Prediction No. 1: "There is NO WAY Panini gets a LIMITED registration in 2013."

OK, we're starting out with something infuriating to me. Technically, Panini did not get a real LIMITED registration in 2013. The Trademark Office, however, messed up and erroneously issued a LIMITED registration. It even admitted this error, and is in the process of rectifying it. So, yes…on paper Panini had a registration, but in fact, it did not.

Given how I worded the prediction, I guess I was only 90 percent right on this one.

Ugh!

2013 Prediction No. 2: The Durantula v. Kevin Durant, Panini America and Nike will settle confidentially.

Nailed this one. In April, the battle over who controlled the DURANTULA trademark settled…and confidentially.

If you want to read between the lines about who won, I'd say Mark Durante (the original Durantula) did. For one thing, one of the factors in his filing this suit was the to-be-released Panini DURANTULA card. After the lawsuit was filed, the card was changed. Also, the DURANTULA trademark registration is still alive, and in Mark Durante's name.

So, give it up for the little guy! Looks like he took on Panini, Nike and Kevin Durant…and won.

2013 Prediction No 3: For the Wildcat v. Panini et al. patent case (the electronic trading card case) I predicted the patent (and/or the case) would blow up in 2013, resulting in a win for the remaining defendants.

I got close on this one. Sure, everyone settled before the court had an opportunity to blow the patent up, but there was still a patent reexamination before the Patent Office which could have blown up the patent.

Legal translation: Wildcat's battle moved from the courtroom to the Patent Office.

Just this month, the Patent Office ended its reexamination. A lot of the claims of the Wildcat patent were cancelled, and those that survived were amended and narrowed. So, it kinda blew up.

But, keep in mind, although the Wildcat patent is narrower, it's still out there. Or is it? According to Patent Office records, maintenance fees were not paid on the underlying patent.

Legal translation: To keep a patent alive, the Patent Office wants money from patent owners at three different timeframes. One of those timeframes came and went for the Wildcat patent, and nothing was paid.

Now, the Patent Office website states the underlying Wildcat patent expired in April 2013, but it also says the reexamined patent is still alive.

You can say that the Wildcat patent is truly Schrodinger's Cat. According to the Patent Office website, it is both alive and dead!

So, what is it? Proof that quantum mechanics works? That there are alternate universes, some where the patent is alive and some where it's dead? Or, more likely, a government website that's not really working?

It's confusing, but if I can make an early prediction, I imagine 2014 will clear up whether the Wildcat patent is dead or alive. And if it blew up in 2013 because of a failure to pay maintenance fees, then I got this one right too.

2013 Prediction No. 4: The Upper Deck v. Upper Deck will devolve into more wackiness, two more articles from me this year and 2013 will be the final year of this lawsuit.

Got this one right. Wackiness ensued in that 1) unsubstantiated rumors were thrown out in publicly filed documents that Panini wanted to buy the American Upper Deck, 2) after the death of Richard McWilliam, Upper Deck tried to get him and his estate out of the lawsuit on a technicality, and 3) unbelievably, one the parties in the lawsuit spelled McWilliam's name incorrectly (William, not McWilliam) (heck, it is Upper Deck v. Upper Deck…you'd think they should be able to spell their former boss's name). I also wrote double the amount of articles I predicted, and, not only did filings in this lawsuit hint at it ending in February, it actually started wrapping up in October.

It feels good getting this one right, but it is with mixed feelings because the case has a special place in my heart…and I'm really going to miss it.

2014 Predictions

So, overall for 2013 predictions, I did OK. I nailed two predictions, was 90 percent right on another, and through some type of quantum mechanics/Schrodinger Cat theory, I might have predicted the patent blew up in 2013…even though it might still be alive. I guess I'll have to actually wait until 2014 to see if I got that one 100% right.

All in all, a good year of predictions.

Given my success rate, what can we predict for 2014?

2014 Prediction No. 1: We'll all miss the wackiness that was the Upper Deck v. Upper Deck lawsuit, but don't worry. Upper Deck v. Executive will fill that void. Heck, this is a lawsuit over an "insert" set, and yet one of the parties' attorneys needed to be educated on the definition of "insert."  Also, any lawsuit that cites to Law of Cards in its filings is truly amusing. I also predict both sides will put millions of dollars of billable hours into this case, for an ultimate money award of around $10,000.

2014 Prediction No. 2: I believe we'll see at least one lawsuit that focuses on licensed/unlicensed trading card manufacturers. These issues have been percolating for too long…it's about time they boiled over.

2014 Prediction No. 3: Collectors Universe has already filed two lawsuits against apps/programs that allegedly use its information without permission. I predict we'll see another lawsuit along these lines from Collectors Universe.

2014 Prediction No. 4: For some reason, attorneys like filing Law of Cards articles in their lawsuits. It happened at least in UD v. UD and UD v. Executive. I'm sure they do it because it's not proper for a lawyer in a brief to compare their case to a Jerry Springer show or to call the other sides' position esoteric or even dumb, but I get free license to do that. So, given this recent turn of events, I think we'll see at least one more lawsuit cite to Law of Cards in 2014 as well.

2014 Prediction No. 5: I hesitate to make this a prediction because I haven't seen anything indicating it might happen…but it's overdue. I suggested at last year's Summit and on Cardboard Connection Radio that box breaks might run afoul contest, sweepstakes and lottery laws. Given the size of the box break industry, I expect at least one lawsuit will be filed against a box breaker, and we may start to get case law that could affect this growing industry.

Yeah, as I've said before, call me Captain Buzzkill.

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+.

User Comments

  1. Wow. Can you imagine box breaks being illegal. What a concept. Imagine the conversation in that prison cell… Prisoner#1: “so what did you do to get in here”. Prisoner#2 “murder, you?” #1 “jumped in on an underground box break of 2014 Bowman…. Had the cubs….and not one Kris Bryant”. Silence in the cell.

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