Law of Cards: Surreal Battle Breaks Out in Already Surreal LIMITED Trademark Action

Law of Cards: Surreal Battle Breaks Out in Already Surreal LIMITED Trademark Action

The fact that Panini and Topps are battling over a LIMITED trademark is surreal in itself. Now, let's add a surreal battle within that already surreal battle.

The Trademark Trial and Appeal Board just released deposition transcripts from two of Topps' witnesses: Clay Luraschi (the Vice President of Product Development for Sports and Entertainment in North America for Topps) and Alan "Narz" Narziseenfeld (Topps' expert witness and owner of Big League—a retail trading card store just outside of Orlando).

For the most part, the released deposition transcripts run through Topps' evidence of its and other companies' use of the term "limited" on trading cards. This is Topps' attempt to convince the TTAB to stop Panini from getting a LIMITED trademark registration by showing the term is commonly used by all trading card companies. And because of this, if Panini was given a LIMITED monopoly, it'd hurt the entire industry.

Nothing too exciting right? Unless you want to see a brief history of how the word "limited" was used in trading cards.

However, this is the trading card world, so you know there has to be some kind of nonsense. And the LIMITED depositions do not disappoint. They provide us with a surreal exchange between Luraschi, the attorney questioning him (Mr. Zivin), and Topps' attorney (Mr. Baum) over whether a card was a complete set or not, and who had the entire set.

Q. With respect to Exhibit 2, you said it was a complete set?
A. Correct.
Q. It seems like you only produced one card; is that right?
A. That’s just one of 660 cards.
Q. Where are the other 659?
MR. BAUM: Objection. Objection on relevance and lack of clarity. Do you mean physically where are they or are you asking me why we didn’t produce all 659?
BY MR. ZIVIN: Q. No. I’m asking this witness where the other 659 cards?
MR. BAUM: Same objection. I didn’t understand the question. Answer it if you understand it.
THE WITNESS: I don’t understand the question.
BY MR. ZIVIN: Q. Do you have the other 659 cards?
MR. BAUM: Objection.
BY MR. ZIVIN: Q. Isn’t that English, sir? Don't you understand what I mean when I say do you have 659 cards?
MR. BAUM: Objection. It’s unclear. When you say "you," do you mean him personally today sitting at this deposition? Do you mean what Topps has in its warehouse?
BY MR. ZIVIN: Q. You’re the representative who’s testifying on behalf of Topps today, correct?
A. Correct.
Q. Do you know where the other 659 cards are located if they are located anywhere?
A. I don’t have the cards with me.
Q. Do they exist?
A. Yeah, we produced them.
Q. Produced them where?
A. We produced them in 2001.
Q. Do they still exist today, sir?
A. Well, they were sold, so I don’t know who has them in their collection.
Q. All right. So you just don’t know whether they exist at Topps headquarters or in your facilities today; is that correct?
A. I don’t know.

It could have only been better if there were 666 cards in the set.

Legal aside: Come on Topps! You were six cards away from further hilarity!

Oh, and in other LIMITED news, this surreal battle may be nearing an end.

Sort of.

On November 24, the online database for the TTAB that lists the status of all trademark oppositions indicated that the TTAB has changed this case's status to "Submitted on Brief."

Legal translation: Basically, the TTAB is saying, "Thanks for all of your work guys. Your briefing is complete, and resolves all issues we may have. So, no need for a hearing on this one! And we'll issue a ruling when we get to it."

Hopefully in three to six months, there'll be a ruling and we'll know the winner.

The winner until the inevitable appeal that is.

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 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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