Law of Cards: Topps Sues Maker of Alleged Knock-Off Ring Pops

Law of Cards: Topps Sues Maker of Alleged Knock-Off Ring Pops

On August 21, Topps sued a company called Primary Colors for trademark infringement. Apparently, Primary Colors was set to launch a product called the Valentine Ring Lollipop. Topps didn't like this because it believed the Valentine Ring Lollipop infringed Topps' Ring Pop intellectual property.

Legal translation: Topps has not only trademarked the product name Ring Pop, it's also trademark the shape of the Ring Pop. Seriously, U.S. Trademark No. 1846873 covers this:

Ringpop

Yeah, you can trademark pretty much anything.

And really, Topps is right to be concerned. The Valentine Ring Lollipop looks a lot like Topps' Ring Pop.

Valentia Ring Lollipop

Initially, Topps tried avoiding litigation. On June 26, 2014, Topps sent a cease-and-desist letter to Primary Colors. After receiving the letter, Primary Colors agreed to stop manufacturing and selling the Valentine Ring Lollipops.

Legal translation: Topps wins!

Wait, if they agreed to stop, why are we in court now?

Well, on July 22, Topps sent a proposed Settlement Agreement to Primary Colors, but Primary Colors refused to sign it. So, Topps sued Primary Colors.

In the words of the complaint:

Topps can see no reason why Primary Colors would refuse to execute a straightforward Settlement Agreement that encompasses what Primary Colors has previously agreed to do, unless Primary Colors does not intend to cease and desist all of its infringing activity.

I can think of another reason: maybe, the alleged "straightforward" settlement agreement was not so straightforward?

I've litigated and settled many intellectual property cases.  There is no such thing as a "straightforward" IP settlement agreement. They're always chock full of legalese and 14 standard form paragraphs that get recycled from agreement to agreement.

I suspect this is the actual reason Primary Colors did not sign the agreement. Had the agreement just said "Primary Colors agrees to stop manufacturing and selling Valentine Ring Pops," and had two lines for signatures from Topps and Primary Colors, I bet the agreement would have been signed on July 22.

Now, I could be wrong. Topps alleges in its complaint that the reason it brought the lawsuit was because, "Upon information and belief, Primary Colors intends to continue its unauthorized use of the Ring Pop Trade Dress."

Legal translation: We have no proof that it is going to keep making and selling Ring Lollipops, and Primary Colors did tell us it's going to stop…but, we're telling you judge, we just don't believe it!

In all fairness, maybe Topps is right. Maybe Primary Colors did plan on infringing Topps' intellectual property. Either way, Topps is entitled to seek damages for past infringement even if the amount it could win at trial would be less than the attorneys' fees it would pay to get that judgment. And yes, everyone is entitled to their day in court to have a jury find that the other side did in fact break the law, even though it would be a total waste of everyone's time.

I suspect, however, this is more of an action by Topps to force a smaller competitor to sign a settlement document that seeks more from Primary Colors than Topps would get if it won its case at trial. I mean, Topps attached the cease-and-desist letter to the complaint, but it did not attach the "straightforward" settlement agreement.

If it was "straightforward" why not attach it?

I doubt Primary Colors will answer the complaint. In all likelihood, Primary Colors will sign the settlement document as Topps sent it, and this case will be over. I hope, however, Primary Colors does answer the complaint, however, and in doing so attaches the proposed agreement.

Then we can let everyone decide if it was "straightforward" or not.

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, Simmons Hanly Conroy 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.

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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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