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Upper Deck Free From Restraining Order

A court has lifted the temporary restraining order against Upper Deck, freeing the company to continue distribution of Legendary Cuts baseball.

Saying "millions of dollars are at stake", the ruling judge says Topps acted in "bad faith".




The temporary restraining order was lifted against Upper Deck late Wednesday, allowing the distributors and customers to resume selling all Upper Deck Baseball products, including 2008 SP Legendary Cuts Baseball.

The Topps company had asked the US Federal District Court in Indianapolis to halt the sale of Legendary Cuts last week over a dispute involving what it said was trademark infringement. Topps and CMG Worldwide, a company representing the estates of some well-known deceased players in the Legendary Cuts set, filed the suit. Distributors and shop owners were told not to sell the product.
The court disagreed with claims by Topps and CMG, siding with Upper Deck.

In early April CMG entered into an exclusive agreement with Topps for the production of trading cards feauturing several players Upper Deck had planned to include in the Legendary Cuts set. Upper Deck’s product development team then removed images of those players controlled by CMG from the Legendary Cuts product, keeping only cards with cut signatures and no images. Topps still felt the cards were in violation of its deal with CMG, but the court ruled otherwise.

Some cases of the product had already been shipped to hobby shops or were in the hands of distributors, leading to confusion about the legality of selling the product. Prices on eBay took a bit of a jump as collectors wondered whether Legendary Cuts might become difficult to find.

According to Chief Judge, David Hamilton, “For the reasons stated on the record in open court today, June 18, 2008, the Temporary Restraining Order issued ex parte in this action on June 10, 2008, is herby dissolved, effective immediately.”

In a 26-page ruling obtained by Sports Collectors Daily, Hamilton wrote "the irreparable harm to Upper Deck in terms of catastrophic reputational damage, uncertain monetary losses, and an inability to operate its business in the regular course overwhelmingly outweighs the small amount of damages that Plaintiffs might receive if a breach of their rights were to be found, particularly given the relatively miniscule number of cards that are allegedly infringing. Similarly, the public interest is not served by issuing an injunction. Since consumer confusion cannot be an issue in the marketplace, the public interest is best served by allowing consumers of collectible trading cards the broadest choice of products in the market."

Hamilton was critical of Topps and CMG’s move to block the distribution of the cards. The summary of the ruling chastised the plaintiffs.

"This case is a perfect example of why federal courts almost never grant ex parte temporary restraining orders (“TROs”) in commercial cases—because hearing only one side of the story creates temptation for parties to attempt to abuse the judicial process," Hamilton wrote. "The instant case is a particularly egregious example of Plaintiffs leading a trial court to act upon incomplete and inaccurate information presented by the moving parties which Defendant The Upper Deck Company, Inc. (“Upper Deck”) had no opportunity to correct.

Plaintiff CMG Worldwide, Inc. (“CMG”) and Plaintiff The Topps Company, Inc. (“Topps,” and collectively, “Plaintiffs”) filed an ex parte application with this Court for a TRO against Upper Deck on June 9, 2008. Plaintiffs represented to the Court that there was no time to notify Upper Deck of its application, that Upper Deck was planning on releasing a series of baseball-themed trading cards containing images of players exclusive to Plaintiffs, that Plaintiffs
had a likelihood of success on the merits as to its right of publicity and false endorsement claims, and that no irreparable harm would come to Upper Deck should a TRO be issued."

Hamilton also cited Topps’ failure to let Upper Deck know about its plans to file the restraining order:

"It is impossible to attribute any other motive than bad faith to Plaintiff’s deliberate failure to notify Upper Deck of its intention to seek at TRO," he wrote.

“It’s a great victory for us to be able to get 2008 SP Legendary Cuts Baseball into the market for our collectors,” said Tim Muret, Upper Deck’s Vice President of Sports Cards and Memorabilia. “The product has such a huge following and we are happy collectors will get to enjoy the experience of pulling the exciting cut signature autographs of baseball’s greatest stars.”


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