Law of Cards: 2016 Summer Trademark Edition

Law of Cards: 2016 Summer Trademark Edition

Summers are a slow time of the year for lawyers. We can't get a hold of our clients because they're either vacationing, getting ready for an upcoming vacation or catching up from the work they missed while they were on said vacation. We can't get hearings to move our cases along because our judges either left a little early to hit the back nine, or their staff is off…which means the judges don't know how to access their calendar, so we're not getting hearings anyway. Opposing counsel is also never around because they're trying to sneak into their clients' busy schedules, or, more annoyingly, are vacationing and unreachable themselves. And, really, since work is so slow and our kids are off school, we're spending a little more time on Airbnb and Expedia to see if we can't jam in one more week off before school starts again too.

Oh, and add in the fact that this summer, our associates and staff started taking ever-increasing lunch breaks, which we learned just this week was so they could collect Pokemons…and you see, it's not the easiest time to get any legal work done.

That being said, while the rest of the legal world is locked in a summer quagmire of frustration and fun, the trading card industry has actually been working at the Trademark Office.

To which I say, "Good for you!" Someone has to bill those hours!

Upper Deck's New Trademark Registrations

The trading card company with the most happening at the Trademark Office this summer is Upper Deck. On July 12, it received a registration for SIGNATURE SENSATIONS for "trading cards."

Legal translation: This means it can stop putting a TM next to every usage of "Signature Sensations" and can start using an R with a circle around it ®. Yes, there are other "legal" ramifications of obtaining a registration, but they're mostly boring. Just know, registrations are good, so…congrats, UD!

Upper Deck is also close to obtaining a trademark registration for the phrase BIG SHOTS for "trading cards." All UD needs to do is file a statement of use, proving that the trademark is being used in commerce, and it'll be able to start using even more R's with circles around them.

Legal translation: Trademarks follow the adage of, "If you don't use it, you lose it." Unlike other forms of intellectual property, to receive and keep a trademark registration, the owner must prove the mark is actually being used. So, once UD shows it has a current trading card product (or insert) for sale, it'll receive its trademark registration.

Given that the phrase HOT SHOTS likely has trademark value (legal translation: UD could likely stop other trading card companies from using it in association with trading cards), I imagine there will be a forthcoming UD HOT SHOTS product, or at a minimum an insert, in the near future.

And we're still not done with UD. They're also in line to receive trademark registrations for throwback brand names FLEER and FLEER ULTRA for, "Clothing for men, women and children, namely, sweaters, sweatshirts, sweat pants, t-shirts, blouses, tank tops, jerseys, undershirts, jackets; pants, namely, jeans, slacks and track pants; jogging suits; shorts; skirts; suits; dresses; lounge wear; socks; head wear, namely, caps, hats, visors and headbands; gloves; footwear, namely, boots, athletic shoes, sandals and slippers."

Legal translation: That's a very long way of saying, "clothing," so that lawyers can maximize their billable hours. I did say summer was slow, right?

UD's FLEER ULTRA and FLEER marks will be published on July 19, 2016, and so long as no one opposes them (legal translation: so long as another trading card company doesn't allege these marks impinge on its rights) within the 30-day opposition period, Upper Deck should receive even more registrations.

Topps In the Now and Going for the Apex

Topps is also in line to receive trademark registrations for TOPPS NOW and APEX both for "trading cards." The Trademark Office has already approved these marks, and will publish them for opposition in late July. Like with UD's FLEER marks, as long as TOPPS NOW and APEX survive their 30-day opposition periods, Topps will be able to include more circled R's with both marks, likely in the fall.

Leaf Trading's Pearl Application

Lastly, Leaf Trading is just a statement of use away from obtaining a trademark registration for the mark PEARL for "trading cards." Notably though, Leaf has been on the verge of receiving this trademark since July of 2015, but has been filing for extensions since then.

Legal aside: Perhaps recognizing that summers are slow, Leaf decided to help its attorneys out by keeping this trademark application pending until the next summer as well?

Given Leaf has been at this same point for almost a year, it might be on the fence as to whether it wants to commit to a PEARL product or not. But still, owning any trademark registration is valuable (it is property after all, even if only intellectual property), so I expect we will see a PEARL product (or insert) sometime in the near future.

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 and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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

E-Mail Author |  http://prwlegal.com/attorneys/paul-lesko/
Paul Lesko has litigated complex and intellectual property actions for over 18 years. 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 card collector. He's also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.

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