Law of Cards: There Have Been How Many Sports Card Industry Lawsuits?

Law of Cards: There Have Been How Many Sports Card Industry Lawsuits?

One of the questions I'm frequently asked is whether the number of lawsuits in the trading card industry increasing? Or are they just being reported more?

It is difficult to define what constitutes a trading card industry lawsuit, so I limited my research to lawsuits that involve major trading card manufacturers, primarily Topps, Upper Deck, Panini and Leaf. In a lawsuit, companies could be either a plaintiff or defendant.

My search didn't spread to other corners of the hobby, like publications, dealers and card supply manufacturers.

Also, the data from which I can cull data has limits. The further we travel back in time, the data becomes less readily available. And there are some limits to my search.

1) It is easier to find information about federal lawsuits since these suits share an online filing system. So, what is reported about these lawsuits is more comprehensive.

2) Information on state lawsuits is more difficult to find because state courts have only recently gone online. Even then, there are still some holdouts. Plus, for state suits, there is no central database for all states' filings, so there will be gaps (Legal translation: I needed to look at each court in each state to find the data I wanted). So, since I did not look at every court website in the country, I focused on the courts in the states where Topps, Upper Deck, Panini and Leaf are located (namely, California, Texas and New York).

3) Data on cases prior to 2005 is sparse (not all federal courts were online, even less state courts were online, etc.), so I only went back seven years in time to avoid too much of a skew in data.

4) Although technically not lawsuits, I included trademark oppositions as well, because these actions are run like lawsuits (with depositions and everything) and because they involve intellectual property (which is more interesting to me).

5) I eliminated some suits that were consolidated into the same suit, or were offshoots of already filed suits.

Given these parameters, to my surprise, the number of lawsuits did not peak in 2011. Rather, there was a very slight decline from 2010. That said, both years had a lot of action. And while 2012 looked to be a blockbuster year, even if it continues at its current pace, it looks to be comparable to 2010 and 2011.

2007, on the other hand, is a mystery. There were only seven lawsuits filed. Now that's the aberration because every other year hovers well over 10 suits.

Year-by-Year Breakdown of Lawsuits Involving Trading Card Companies:

  • 2012 (through Aug.): 9
  • 2011: 16
  • 2010: 17
  • 2009: 12
  • 2008: 12
  • 2007: 7
  • 2006: 10
  • 2005: 13

Breaking Down the Data

The company involved in the most lawsuits over this time frame was Upper Deck. They found themselves in 60 suits as either a plaintiff or defendant. And that's not counting the Upper Deck v. Upper Deck suit twice! Topps came in second with 31 lawsuits. Panini and Leaf pulled up the rear with seven and three suits, respectively.

Also worth noting is that Topps, Upper Deck, Panini and Leaf have all been defendants more than they have plaintiffs over the last few years. In other words, card companies are not that aggressive. They get sued more than they bring suit.

Intellectual property suits (patent, trademark, copyright, rights of publicity, false marking and antitrust) won the day with 47 different lawsuits surrounding those issues. Breach of contract came in second with 26.

For those interested the cases from which the above-information was gathered are provided below. For those who don't consider trademark oppositions actual lawsuits, I bolded them so you can try to ignore them.

Sports Card Lawsuits: 2005-2012

Aug. 2012 - Upper Deck v. Executive Trading (Declaratory Judgment - Copyright, Breach of Contract)

June 2012 Durante v. Durant, Panini, etc. (Trademark infringement).

May 2012 Topps v. Panini ("Chromium" TM opposition)

April 2012 Leaf v. Luck (Declaratory judgment action regarding right of publicity).

March 2012 Topps v. Ideanation LLC ("Pushy Pops" trademark opposition)

March 2012 NFLPA v. Upper Deck (Breach of contract)

Feb. 2012 Major League Baseball Properties, Inc. v. The Upper Deck Company, LLC (Breach of contract)

Feb. 2012 Panini v. Leaf (Tortious interference with a contract)

Feb. 2012 Holmes v. Topps (Right of publicity)

Late 2011 Bailey v. Upper Deck (small claims)

Oct. 2011 Matt Construction v. Upper Deck (unknown)

Sept. 2011 Wildcat Intellectual Property Holdings, LLC v. 4Kids Entertainment, Inc., Topps, Panini America, etc… (Patent)

Aug. 2011 The Topps Company, Inc. v. Leaf Trading Cards, LLC (Copyright/Trademark)

Aug. 2011 Upper Deck International B.V. v. The Upper Deck Company et al. (Everything under the sun. Just kidding. Breach of contract, etc.)

July 2011 Robert Half International v. Upper Deck (Collections)

June 2011 BJ's Restaurants v. Topps ("Zookies" trademark opposition)

May 2011 Graifman v. Topps Company, Inc. (False marking)

May 2011 Lyon v. The Upper Deck Company et al (Americans with Disabilities Act)

April 2011 Topps v. Hasbro ("Mechtech" trademark opposition)

March 2011 National Cable Communications v. Upper Deck (Collections)

March 2011 Adecco USA v. Upper Deck (Collections)

June 2011 The Upper Deck Company, Inc. v. Frontline Collectibles, Inc. et al. (Distribution agreement)

May 2011 Heedong Chae v. The Topps Company, Inc. et al (False marking)

May 2011 Panini America, Inc. v. The Art of the Game (Tortious interference)

March 2011 MeadWestvaco v. Topps ("Five Star" trademark opposition)

Dec. 2010 Dr. Buzz Aldrin et al v. Topps Company, Inc. et al (Right of publicity)

Oct. 2010 Jackson v. The Topps Company, Inc. et al (Family and Medical Leave Act)

Oct. 2010 Kovin Corp. v Upper Deck (small claims)

Oct. 2010 The Upper Deck Company, LLC et al v. United Parcel Service, Inc. (other)

Aug. 2010 Kareem Abdul Jabbar v. Upper Deck (Right of publicity)

Aug. 2010 Upper Deck. V. World Wrestling Entertainment ("Legendary" trademark opposition)

Aug. 2010 Quark Images LLC v. Adidas AG et al, (including Topps) (Patent infringement)

Aug. 2010 Topps v. i-Candy International ("Bling Pop" trademark opposition)

July 2010 Topps v. Garry Ash ("Zookies" trademark opposition)

May 2010 Good Earth Plant & Flower v. Upper Deck (small claims)

May 2010 Upper Deck v. Wilson Sonsini (Professional negligence)

May 2010 The Upper Deck Company et al v. Endurance American Specialty Insurance Company et al (Breach of Contract)

April 2010 4Kids Entertainment, Inc. et al v. The Upper Deck Company et al. (Breach of Contract)

April 2010 Van Buren v. Panini America Inc. (Trademark Infringement)

March 2010 Upper Deck Company, LLC et al v. United Parcel Service, Inc., (other)

Feb. 2010 Merrill Communications v. Upper Deck (Breach of Contract)

Feb. 2010 Major League Baseball Properties Inc. v. The Upper Deck Company, LLC (Trademark infringement)

Dec. 2009 Topps v. Melissa Shore ("Posh Pops" trademark application)

Oct. 2009 Legends, Inc. v. The Upper Deck Co Inc, et al. (Patent infringement)

Oct. 2009 Sterpka, Collectors Universe and PSA v. Upper Deck (Business tort)

Oct. 2009 Darryl Augustin, Jr., Wolftrotter, Inc., White Cobra Enterprises, Antawn Jamison, Rowcats, Inc., Tracy McGrady, Anthony Randolph Jr., Derrick Rose, Brandon Roy, Russel Westbrook, Deandre Jordan and Terrance Ford v. Topps (Breach of contract)

Sept. 2009 Zuffa v. Topps ("Own the Octagon!" trademark opposition)

Sept. 2009 The Upper Deck Company v. Konami Marketing, Inc. et al. (Breach of contract)

Sept. 2009 Green Jacket Auctions, et al. v. The Upper Deck Company, LLC, et al. (Breach of contract)

July 2009 The Upper Deck Company v. 1043525 Ontario, Inc. d.b.a. Prince Wholesalers d.b.a. O/A Prince Wholesalers et al (Breach of contract)

June 2009 The Upper Deck Company, Inc. et al v. Judd (Breach of contract)

April 2009 The Topps Company, Inc. v. The Upper Deck Company, Inc. (Copyright infringement)

Feb. 2009 The Upper Deck Company v. Konami Marketing, Inc. et al. (Breach of contract)

Jan. 2009 Major League Baseball v. Donruss (now Panini) (Trademark)

Dec. 2008 Upper Deck Company v. CIP Hughes Cheyenne Flex Portfolio LLC (Breach of contract)

Dec. 2008 Xnergy v. Upper Deck (Breach of Contract)

Dec. 2008 Upper Deck Company v. Konami Marketing, Inc. et al. (Breach of contract)

Oct. 2008 Media Technologies v. Upper Deck Company, et al (and Topps Company) (Patent infringement)

Aug. 2008 Message in a Bottle v. Topps ("Message in a Bottle" trademark opposition))

June 2008 CIBC Inc. et al v. The Upper Deck Company (Breach of contract)

June 2008 CMG Wordlwide, Inc. et al. v. The Upper Deck Company (Trademark infringement)

April 2008 Beyond Comics Inc et al v. Konami Corp. et al. (including Upper Deck) (Copyright infringement)

April 2008 Aniplex, Incorporated v. Upper Deck Company (Breach of contract)

Feb. 2008  Rainbow Distribution v. Upper Deck ("Huntik Secrets & Seekers" trademark opposition)

Feb. 2008 WBGH Educational Foundation v. Upper Deck ("Masterpiece" trademark opposition)

Jan. 2008 Media Technologies Licensing, LLC v. The Upper Deck Company et al.  (Patent infringement)

May 2007 RLMC (and Upper Deck) v. Yasuda Landscape (Breach of contract)

May 2007 Massoud Eivazi v. Upper Deck (Wrongful termination)

April 2007 Freight Management, Inc. v. Upper Deck Company (Breach of contract)

March 2007 New Jersey Carpenters Pension v. Topps (Breach of fiduciary duties – two other similar suit)

March 2007 Fishbury Ltd. v. Topps (Breach of fiduciary duty)

Nov. 2006 Top Shelf Enterprises v. Topps ("Wacky Packages" trademark opposition)

June 2006 Merrick Mint, Inc. v. Upper Deck Company (Breach of contract)

April 2006 Magliaro v. The Upper Deck Company (Breach of contract, employment discrimination)

March 2006 Brooks v. The Topps Company Inc. (Trademark infringement)

March 2006 The Upper Deck Company, LLC v. Adkins  (Trademark infringement)

Feb. 2006 The Upper Deck Co., LLC. v. Markun Zusman Compton, LLP (Breach of contract)

Feb. 2006 Top Shelf Enterprises, Inc. v. The Topps Company, Inc. et al, (Antitrust)

Jan. 2006 The Topps Company, Inc. v. Top Shelf Enterprises, Inc. et al. (Trademark infringement)

Jan. 2006 National Hockey League v. Upper Deck ("Center Ice" trademark opposition)

Jan. 2006 National Hockey League v. Upper Deck ("Breakaway" trademark opposition)

Dec. 2005 Upper Deck v. Orrick Herrington & Sutcliffe (Professional malpractice)

Dec. 2005 Upper Deck v. Michael DuBois – ("Upper Deck" trademark opposition)

Nov. 2005 Upper Deck Company, et al v. Media Technologies, et al. (Patent infringement)

Nov. 2005 Upper Deck v. Markun Zussman (Professional liability)

Oct. 2005 Upper Deck Company, et al v. American Intl, et al. (Insurance)

Sept. 2005 Mr. Chris Dennis v. Upper Deck ("King of the Court" trademark opposition)

Aug. 2005 Upper Deck v. Adkins, et al. (unknown)

Aug. 2005 Wm. Wrigley Jr. Company v. Topps ("Juicy Drop" trademark opposition)

July 2005 Breakey v. Upper Deck ("Breakoff," "Breakzoff" and "Breakeze" trademark oppositions)

May/June 2005 Perry v. Upper Deck Company, et al. (Labor/management relations)

May 2005 Luca Construction v. Upper Deck (Defamation)

March 2005 Coleman, et al v. Topps Company (Patent infringement)

Jan. 2005 Bunge Milling v. Topps ("Bungee" trademark opposition)

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Paul Lesko

E-Mail Author |  http://bit.ly/658N9c
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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