brief CMG Topps v Upper Deck rt of publicity

cmg brief

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF INDIANAINDIANAPOLIS DIVISION

CMG WORLDWIDE, INC. and THE TOPPS )COMPANY, INC. ))Plaintiffs, ) CASE NO. 1:08-cv-0761 RLY/JMS)vs. ))THE UPPER DECK COMPANY, INC., ))Defendant. )

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF EX PARTE APPLICATION FORTEMPORARY RESTRAINING ORDERI. INTRODUCTION

Plaintiffs, CMG WORLDWIDE, INC. (“CMG”) and THE TOPPS COMPANY, INC.(“TOPPS”, and together with CMG, “Plaintiffs”), seek a temporary restraining order (“TRO”)against defendant, THE UPPER DECK COMPANY, INC. (“Defendant”).Plaintiffs seek to enjoin Defendants, and its agents, distributors, representatives, assigns,and anyone acting in concert with them, from using the names, images, likenesses, signatures,personae, and other related indicia of deceased baseball legends Jackie Robinson (“Robinson”),Lou Gehrig (“Gehrig”), Mel Ott (“Ott”), Jimmie Foxx (“Foxx”), Rogers Hornsby (“Hornsby”),Thurman Munson (“Munson”), George Sisler (“Sisler”), and Johnny Mize (“Mize”)(collectively, the “Legends”).Specifically, Defendant is on the verge of releasing its “

2008 MLB SP Legendary Cuts

”products, which make use of the Legends’ name, image, likeness and other elements (the“Legends’ Intellectual Property Rights”), which—as Defendant is aware—are exclusivelylicensed to TOPPS (“Defendant’s Cards”). Plaintiffs ask this Court to enjoin Defendant fromreleasing Defendants’ Cards and any other infringing products that use the Legends’ IntellectualProperty Rights.

cmg brief

As explained in detail below and in the accompanying affidavits of Adam Zucker of TOPPS and Ryan M. Boyle of CMG, Defendant unsuccessfully sought to obtain the “Legends’Intellectual Property Rights,” which were instead conveyed exclusively to TOPPS, defendant’sdirect competitor. Having failed to acquire the Legends’ Intellectual Property Rights,Defendants employed “self help” and simply used them, without permission. Defendant’sknowing infringement is a blatant disregard and violation of the Legends’ Intellectual PropertyRights and of TOPPS’ exclusive license to exploit them.Unless it is enjoined, Defendant will release the offending Defendant’s Card into themarket on June 11

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. If this happens, both TOPPS and CMG will sustain irreparable harm. Asto CMG, it will appear that CMG has “double exclusively licensed” the Rights, has breached itsexclusive agreements with TOPPS or does not actively monitor and protect its clients’ rights, allof which threatens to seriously diminish CMG’s standing and reputation as the premierecelebrity-licensing firm, which CMG has carefully and painstakingly cultivated over the lastthree decades.Similarly with TOPPS, by an April 14, 2008 press release, entitled “Multi-Year DealGives Topps Exclusive Rights to Produce Trading Cards of Major League Baseball’s Greatest,”TOPPS announced to the industry its exclusive rights for the use of the Legends. If Defendant’s Cards enter the market, it will appear that TOPPS intentionally misled potentialretailers and purchasers, which threatens to seriously diminish its image and credibility—developed over its 70-year existence—which cannot be “bought back” at any price.In contrast, a temporary restraint on the release of Defendant’s Cards will impose nohardship, prejudice or injury on Defendant. As explained in the Zucker Affidavit, it iscommonplace in the trading card industry for the release date for a particular card series to bedelayed. (Zucker Aff., ¶ 10.) In fact, Defendant previously announced a May 22, 2008 releasedate for Defendant’s Cards (now pushed back, as discussed, to June 11, 2008). (Zucker Aff., ¶

cmg brief

10.) Thus, if the Defendant’s Cards are released a few days or even weeks later than anticipated,there is no reason the cards will be any less marketable or desirable to consumers.Nor is there any danger that, should a temporary restraint issue against the release of Defendant’s Cards, TOPPS will “beat” Defendant to the market. As Zucker attests, TOPPS hasno plans to, and will not, release any Legends cards under the Agreement within at least the next20 days. (Zucker Aff., ¶ 11.)

II.

THE PARTIES

CMG is the premiere celebrity-licensing agency and is recognized around the world asagent and representative for such internationally recognized celebrities as Marilyn Monroe,James Dean, Ella Fitzgerald, and Chuck Berry. (Boyle Aff., ¶ 2.) CMG is also the exclusiveworldwide agent for countless sports figures, including, as is relevant to this case, the Legends.(Boyle Aff., ¶ 2.)CMG, through its contractual agreements with the Legends, licenses to third parties theLegends’ Intellectual Property for commercial use on or in association with various products,goods, and services throughout the world. (Boyle Aff., ¶ 3.) Under its agreements with theLegends, CMG is also authorized to enforce the Legends’ Intellectual Property, which includesthe right to send cease and desist letters, file formal opposition and cancellation proceedings, andpursue litigation on each Legend’s behalf. (Boyle Aff., ¶ 3.)

TOPPS, which was founded in 1938, is a leading creator and marketer of sports andrelated trading cards, entertainment products and distinctive confectionery. (Zucker Aff., ¶ 1.)Defendant is also a creator and marketer of sports trading cards. TOPPS and Defendant aredirect competitors in their highly-competitive industry.