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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE TOPPS COMPANY, INC., Plaintiff, -againstTHE UPPER DECK COMPANY, INC., Defendant. Defendant The Upper Deck Company, Inc., (“Upper Deck” or “Defendant”) by its attorneys Quinn Emanuel Urquhart Oliver & Hedges LLP, hereby submits its answer to the Second Amended Complaint of Plaintiff The Topps Company, Inc., (“Topps” or “Plaintiff”). Jurisdiction 1. Upper Deck admits that this Court has subject matter jurisdiction over this action 09-cv-3780 (RMB) ECF Case ANSWER TO SECOND AMENDED COMPLAINT

as pled in Paragraph 1 of the Second Amended Complaint for products that are validly registered with the United States Register of Copyrights. Upper Deck admits that this Court has supplemental jurisdiction over the related common law claims as pled in Paragraph 1 of the Second Amended Complaint. Upper Deck denies any remaining allegations in Paragraph 1 of the Second Amended Complaint. 2. In response to Paragraph 2 of the Second Amended Complaint and solely for the

purposes of this action, Upper Deck does not contest that it is subject to personal jurisdiction in this district. Upper Deck admits that it has conducted business in this district, but denies that it has committed a tort in this or any other district. Upper Deck denies any remaining allegations in Paragraph 2 of the Second Amended Complaint.

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The Parties 3. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 3 of the Second Amended Complaint and therefore denies them. 4. Upper Deck admits that it is a corporation organized under the laws of Nevada

with a place of business at 5909 Sea Otter Place, Carlsbad, California 92010. Upper Deck further admits that it conducts business in New York and elsewhere in the country, and on www.upperdeck.com, and denies any remaining allegations in Paragraph 4 of the Second Amended Complaint. Factual Background 5. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 5 of the Second Amended Complaint and therefore denies them. 6. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 6 of the Second Amended Complaint and therefore denies them. 7. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 7 of the Second Amended Complaint and therefore denies them. 8. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 8 of the Second Amended Complaint and therefore denies them.

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9.

Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 9 of the Second Amended Complaint and therefore denies them. 10. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 10 of the Second Amended Complaint and therefore denies them. 11. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 11 of the Second Amended Complaint and therefore denies them. 12. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 12 of the Second Amended Complaint and therefore denies them. 13. Upper Deck states that the allegation in Paragraph 13 regarding 17 U.S.C. §

410(c) states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of this allegation in Paragraph 13 of the Second Amended Complaint and therefore denies it. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any other remaining allegations in Paragraph 13 of the Second Amended Complaint and therefore denies them. 14. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 14 of the Second Amended Complaint and therefore denies them.

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15.

Upper Deck states that the allegations in Paragraph 15 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 15 of the Second Amended Complaint and therefore denies them. Topps’s 1971 Baseball Cards 16. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 16 of the Second Amended Complaint and therefore denies them. 17. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 17 of the Second Amended Complaint and therefore denies them. 18. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 18 of the Second Amended Complaint and therefore denies them. 19. Upper Deck states that the allegations in Paragraph 19 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 19 of the Second Amended Complaint and therefore denies them. 20. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 20 of the Second Amended Complaint and therefore denies them.

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21.

Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 21 of the Second Amended Complaint and therefore denies them. 22. Upper Deck states that the allegations in Paragraph 22 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 22 of the Second Amended Complaint and therefore denies them. Topps’s 1975 Baseball Cards 23. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 23 of the Second Amended Complaint and therefore denies them. 24. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 24 of the Second Amended Complaint and therefore denies them. 25. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 25 of the Second Amended Complaint and therefore denies them. 26. Upper Deck states that the allegations in Paragraph 26 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 26 of the Second Amended Complaint and therefore denies them.

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Topps’s 1977 Baseball Cards 27. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 27 of the Second Amended Complaint and therefore denies them. 28. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 28 of the Second Amended Complaint and therefore denies them. 29. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 29 of the Second Amended Complaint and therefore denies them. 30. Upper Deck states that the allegations in Paragraph 30 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 30 of the Second Amended Complaint and therefore denies them. Topps’s 1988 Baseball Cards 31. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 31 of the Second Amended Complaint and therefore denies them. 32. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 32 of the Second Amended Complaint and therefore denies them.

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33.

Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 33 of the Second Amended Complaint and therefore denies them. 34. Upper Deck states that the allegations in Paragraph 34 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 34 of the Second Amended Complaint and therefore denies them. 35. Upper Deck states that the allegations in Paragraph 35 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 35 of the Second Amended Complaint and therefore denies them. Topps’s 1979-1980 Topps Hockey Cards 36. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 36 of the Second Amended Complaint and therefore denies them. 37. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 37 of the Second Amended Complaint and therefore denies them. 38. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 38 of the Second Amended Complaint and therefore denies them.

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39.

Upper Deck states that the allegations in Paragraph 39 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 39 of the Second Amended Complaint and therefore denies them. 40. Upper Deck states that the allegations in Paragraph 40 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 40 of the Second Amended Complaint and therefore denies them. The Parties’ Relationship with O-Pee-Chee 41. Upper Deck admits that O-Pee-Chee Company, Ltd. is a Canadian company, but

lacks knowledge or information sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph 41 of the Second Amended Complaint and therefore denies them. 42. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 42 of the Second Amended Complaint and therefore denies them. 43. Upper Deck states that the allegations in Paragraph 43 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 43 of the Second Amended Complaint and therefore denies them.

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Public Recognition of the Topps Baseball and Hockey Cards 44. Upper Deck states that the allegations in Paragraph 44 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 44 of the Second Amended Complaint. 45. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 45 of the Second Amended Complaint and therefore denies them. 46. Upper Deck admits that cards sold in the past do not necessarily lose their value

after the point of first sale, that there is a secondary market for trading cards as collectibles, and that there are card shows, hobby and memorabilia stores and online auction sites in which trading cards are sold. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any other remaining allegations in Paragraph 46 of the Second Amended Complaint and therefore denies them. 47. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 47 of the Second Amended Complaint and therefore denies them. 48. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 48 of the Second Amended Complaint and therefore denies them. 49. Upper Deck states that the allegations in Paragraph 49 of the Second Amended

Complaint state a legal conclusion, to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 49 of the Second Amended Complaint.

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Upper Deck’s Alleged Infringement 50. Complaint. 51. Upper Deck admits that it released a March 1, 2007 press release stating that it “is Upper Deck admits the allegations in Paragraph 50 of the Second Amended

proud to re-introduce the O-Pee-Chee name to a new generation of collecting enthusiasts.” Upper Deck states that the allegations that Upper Deck has used designs that Topps owns exclusively is a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies these allegations. Upper Deck denies any remaining allegations in Paragraph 51 of the Second Amended Complaint. Upper Deck’s Alleged Copying of Topps’ Baseball Cards 52. Upper Deck states that the allegation that Upper Deck started selling cards that

copy Topps 1975 Baseball card design is a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies this allegation. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 52 of the Second Amended Complaint and therefore denies them. 53. Upper Deck admits that Paragraph 53 of the Second Amended Complaint depicts

the front of a 2009 Upper Deck product. Upper Deck states that the allegation that Upper Deck’s product copies the Topps 1975 Baseball card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its product copies the Topps 1975 Baseball card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 53 of the Second Amended Complaint and therefore denies them. 54. Upper Deck states that the allegations in Paragraph 54 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a

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response is required, Upper Deck denies the allegations in Paragraph 54 of the Second Amended Complaint. 55. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 55 of the Second Amended Complaint and therefore denies them. 56. Upper Deck admits that Paragraph 56 of the Second Amended Complaint depicts

the front of a 2009 Upper Deck product. Upper Deck states that the allegation that Upper Deck’s product copies the Topps 1977 Baseball card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its product copies the Topps 1977 Baseball card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 56 of the Second Amended Complaint and therefore denies them. 57. Upper Deck states that the allegations in Paragraph 57 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 57 of the Second Amended Complaint. 58. Upper Deck lacks knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations in Paragraph 58 of the Second Amended Complaint and therefore denies them. 59. Upper Deck admits that Paragraph 59 of the Second Amended Complaint depicts

the front of a 2009 Upper Deck product. Upper Deck states that the allegation that Upper Deck’s product copies the Topps 1971 Baseball card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its

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product copies the Topps 1971 Baseball card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 59 of the Second Amended Complaint and therefore denies them. 60. Upper Deck states that the allegations in Paragraph 60 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 60 of the Second Amended Complaint. Upper Deck’s Alleged Copying of Topps’ Hockey Cards 61. Upper Deck admits that in September of 2008 it started selling its 2008-09 NHL

product. Upper Deck states that the allegation that its product is “almost identical” to the 19791980 Topps Hockey card design is a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies this allegation. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 61 of the Second Amended Complaint and therefore denies them. 62. Upper Deck admits that Paragraph 62 of the Second Amended Complaint depicts

the front and back of an Upper Deck product. Upper Deck states that the allegation that Upper Deck’s product copies the 1979-1980 Topps Hockey card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its product copies the 1979-1980 Topps Hockey card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 62 of the Second Amended Complaint and therefore denies them. 63. Upper Deck admits that on or about April 14, 2009 it began distributing its 2008-

09 NHL OPC Update Hockey set. Upper Deck further admits that April 14, 2009 is the day that Topps filed its original complaint in this action. Upper Deck states that the allegation that its

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product is “nearly identical” to the 1979-1980 Topps Hockey card design is a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies this allegation. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 63 of the Second Amended Complaint and therefore denies them. 64. Upper Deck admits that Paragraph 64 of the Second Amended Complaint depicts

the front and back of an Upper Deck product. Upper Deck states that the allegation that Upper Deck’s product copies the 1979-1980 Topps Hockey card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its product copies the 1979-1980 Topps Hockey card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 64 of the Second Amended Complaint and therefore denies them. 65. Upper Deck admits that in or about June 2009 it released the Upper Deck 2009 O-

Pee-Chee Baseball product and that copies of certain of its web pages are annexed to the Second Amended Complaint, and refers the Court to the entirety of those web pages. Upper Deck denies knowledge or information sufficient to form a belief as to when Topps learned of the alleged activities in question, and except as so stated, denies the allegations of Paragraph 65 of the Second Amended Complaint. 66. Upper Deck states that the allegations in Paragraph 66 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 66 of the Second Amended Complaint.

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67.

Upper Deck admits that Paragraph 67 of the Second Amended Complaint depicts

a photocopy of the front and back of an Upper Deck product and respectfully refers the Court to the corresponding actual Upper Deck card Upper Deck states that the allegation that Upper Deck’s product copies the 1979-1980 Topps Hockey card design states a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies that its product copies the 1979-1980 Topps Hockey card design. Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 67 of the Second Amended Complaint and therefore denies them. 68. Upper Deck states that the allegations in Paragraph 68 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck denies the allegations in Paragraph 68 of the Second Amended Complaint. 69. Upper Deck admits that to the extent Topps possesses rights in the designs of its

cards capable of being licensed, Upper Deck is not licensed by Topps itself to use the alleged rights that form the basis of Topps’s Second Amended Complaint. 70. Complaint. Upper Deck’s Use of Topps’ Cards and Trademarks in Its 2009 Legendary Cuts Series 71. Upper Deck admits that in or about May 2009 it released the Upper Deck SP Upper Deck denies the allegations in Paragraph 70 of the Second Amended

Legendary Cuts product and that copies of certain of its web pages are annexed to the Second Amended Complaint, and refers the Court to the entirety of those web pages. Upper Deck denies knowledge or information sufficient to form a belief as to when Topps learned of the alleged

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activities in question, and except as so stated, denies the allegations of Paragraph 65 of the Second Amended Complaint. 72. Upper Deck respectfully refers the Court to its Legendary Cuts product, and

except as so stated, denies the allegations contained in Paragraph 72 of the Second Amended Complaint. 73. Upper Deck admits that Paragraph 73 of the Second Amended Complaint

contains a photocopy of the front of an Upper Deck product that includes a portion of a trading card featuring the signature of Ken Caminetti and bearing the Topps logo and respectfully refers the Court to the actual card itself. To the extent that an additional response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 73 of the Second Amended Complaint and therefore denies them. 74. Upper Deck admits that Paragraph 74 of the Second Amended Complaint

contains a photocopy of the front of an Upper Deck product that includes a portion of a trading card featuring the signature of Joe Niekro and bearing the Topps logo and respectfully refers the Court to the actual card itself. To the extent that an additional response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 74 of the Second Amended Complaint and therefore denies them. 75. Upper Deck admits that Paragraph 75 of the Second Amended Complaint

contains a photocopy of the front of an Upper Deck product that includes a portion of a trading card featuring the signature of Johnny Oates and respectfully refers the court to the actual card itself. To the extent that an additional response is required, Upper Deck lacks knowledge or

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information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 75 of the Second Amended Complaint and therefore denies them. 76. Upper Deck admits that Paragraph 76 of the Second Amended Complaint

contains a photocopy of the front of an Upper Deck product that includes a portion of a trading card featuring the signature of Bob Buhl and respectfully refers the court to the actual card itself. To the extent that an additional response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 76 of the Second Amended Complaint and therefore denies them. 77. Upper Deck admits that it has sold a trading card product that includes a portion

of a trading card featuring the signature of Roberto Clemente. To the extent that an additional response is required, Upper Deck denies the allegations in Paragraph 77 of the Second Amended Complaint. To the extent that an additional response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 77 of the Second Amended Complaint and therefore denies them. 78. Upper Deck denies the allegation contained in Paragraph 78 of the Second

Amended Complaint. 79. Upper Deck admits that to the extent Topps possesses rights to license third party

use of portions of its previously released cards, Upper Deck is not licensed by Topps. To the extent that an additional response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of any remaining allegations in Paragraph 79 of the Second Amended Complaint and therefore denies them. 80. Upper Deck denies the allegations contained in Paragraph 80 of the Second

Amended Complaint.

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81.

Upper Deck states that the allegations in Paragraph 81 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 81 of the Second Amended Complaint. 82. Upper Deck denies the allegations contained in Paragraph 82 of the Second

Amended Complaint. Count One Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck’s 2009 O-Pee-Chee Baseball 83. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 83 as stated herein. 84. Upper Deck states that the allegations in Paragraph 84 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 84 of the Second Amended Complaint and therefore denies them. 85. Upper Deck states that the allegations in Paragraph 85 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 85 of the Second Amended Complaint and therefore denies them. 86. Upper Deck states that the allegations in Paragraph 86 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 86 of the Second Amended Complaint.

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87.

Upper Deck states that the allegations in Paragraph 87 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 87 of the Second Amended Complaint. 88. Upper Deck states that the allegations in Paragraph 59 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 59 of the Second Amended Complaint. 89. Upper Deck states that the allegations in Paragraph 60 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 60 of the Second Amended Complaint. Count Two Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck Series 1 Baseball 90. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 89 as stated herein. 91. Upper Deck states that the allegations in Paragraph 91 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 91 of the Second Amended Complaint and therefore denies them. 92. Upper Deck states that the allegations in Paragraph 92 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 92 of the Second Amended Complaint and therefore denies them.

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93.

Upper Deck states that the allegations in Paragraph 93 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 93 of the Second Amended Complaint. 94. Upper Deck states that the allegations in Paragraph 94 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 94 of the Second Amended Complaint. 95. Upper Deck states that the allegations in Paragraph 95 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 95 of the Second Amended Complaint. 96. Upper Deck states that the allegations in Paragraph 96 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 96 of the Second Amended Complaint. Count Three Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck Series 2 Baseball 97. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 96 as stated herein. 98. Upper Deck states that the allegations in Paragraph 98 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 98 of the Second Amended Complaint and therefore denies them. 99. Upper Deck states that the allegations in Paragraph 99 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a

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response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 99 of the Second Amended Complaint and therefore denies them. 100. Upper Deck states that the allegations in Paragraph 100 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 100 of the Second Amended Complaint. 101. Upper Deck states that the allegations in Paragraph 101 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 101 of the Second Amended Complaint. 102. Upper Deck states that the allegations in Paragraph 102 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 102 of the Second Amended Complaint. 103. Upper Deck states that the allegations in Paragraph 103 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 103 of the Second Amended Complaint. Count Four Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck 2008-09 NHL O-Pee-Chee 104. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 103 as stated herein.

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105.

Upper Deck states that the allegations in Paragraph 105 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 105 of the Second Amended Complaint and therefore denies them. 106. Upper Deck states that the allegations in Paragraph 106 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 106 of the Second Amended Complaint and therefore denies them. 107. Upper Deck states that the allegations in Paragraph 107of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 107 of the Second Amended Complaint. 108. Upper Deck states that the allegations in Paragraph 108 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 108 of the Second Amended Complaint. 109. Upper Deck states that the allegations in Paragraph 109 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 109 of the Second Amended Complaint.

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110.

Upper Deck states that the allegations in Paragraph 110 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 110 of the Second Amended Complaint. Count Five Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck’s 2008-09 NHL OPC Update Hockey 111. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 110 as stated herein. 112. Upper Deck states that the allegations in Paragraph 112 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 112 of the Second Amended Complaint and therefore denies them. 113. Upper Deck states that the allegations in Paragraph 113 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent that a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 113 of the Second Amended Complaint and therefore denies them. 114. Upper Deck states that the allegations in Paragraph 114 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 114 of the Second Amended Complaint.

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115.

Upper Deck states that the allegations in Paragraph 115 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 115 of the Second Amended Complaint. 116. Upper Deck states that the allegations in Paragraph 116 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 116 of the Second Amended Complaint. 117. Upper Deck states that the allegations in Paragraph 117 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 117 of the Second Amended Complaint. Count Six Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck’s 2009 O-Pee-Chee Baseball 118. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 117 as stated herein. 119. Upper Deck states that the allegations in Paragraph 119 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 119 of the Second Amended Complaint and therefore denies them. 120. Upper Deck states that the allegations in Paragraph 120 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is

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required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 120 of the Second Amended Complaint and therefore denies them. 121. Upper Deck states that the allegations in Paragraph 121 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 121 of the Second Amended Complaint and therefore denies them. 122. Upper Deck states that the allegations in Paragraph 122 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 122 of the Second Amended Complaint. 123. Upper Deck states that the allegations in Paragraph 123 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 123 of the Second Amended Complaint. 124. Upper Deck states that the allegations in Paragraph 124 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 124 of the Second Amended Complaint.

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Count Seven Copyright Infringement (17 U.S.C. § 501(a)) Upper Deck’s Legendary Cuts Cards 125. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 124 as stated herein. 126. Upper Deck states that the allegations in Paragraph 126 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 126 of the Second Amended Complaint and therefore denies them. 127. Upper Deck states that the allegations in Paragraph 127 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 127 of the Second Amended Complaint and therefore denies them. 128. Upper Deck states that the allegations in Paragraph 128 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 128 of the Second Amended Complaint. 129. Upper Deck states that the allegations in Paragraph 129 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 129 of the Second Amended Complaint.

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130.

Upper Deck states that the allegations in Paragraph 130 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 130 of the Second Amended Complaint. Count Eight Federal Trademark Infringement (15 U.S.C. § 1114(1)) Upper Deck’s Legendary Cuts Cards 131. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 130 as stated herein. 132. Upper Deck denies the allegations contained in Paragraph 132 of the Second

Amended Complaint. 133. Upper Deck states that the allegations in Paragraph 133 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 133 of the Second Amended Complaint. 134. Upper Deck states that the allegations in Paragraph 134 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 134 of the Second Amended Complaint. 135. Upper Deck states that the allegations in Paragraph 135of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 135 of the Second Amended Complaint.

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136.

Upper Deck states that the allegations in Paragraph 136 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 136 of the Second Amended Complaint. Count Nine Federal False Designation of Origin and Unfair Competition (17 U.S.C. § 1125(a)) Upper Deck’s Legendary Cuts Cards 137. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 136 as stated herein. 138. Upper Deck states that the allegations in Paragraph 138 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 138 of the Second Amended Complaint. 139. Complaint. 140. Upper Deck states that the allegations in Paragraph 140 of the Second Amended Upper Deck denies the allegations in Paragraph 139 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 140 of the Second Amended Complaint. 141. Upper Deck states that the allegations in Paragraph 141 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 141 of the Second Amended Complaint.

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142.

Upper Deck states that the allegations in Paragraph 142 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 142 of the Second Amended Complaint. Count Ten Federal Trade Dress Infringement (15 U.S.C. § 1125(a)) 143. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 142 as stated herein. 144. Upper Deck states that the allegations in Paragraph 144 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 144 of the Second Amended Complaint. 145. Upper Deck states that the allegations in Paragraph 145 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 145 of the Second Amended Complaint. 146. Upper Deck states that the allegations in Paragraph 146 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 146 of the Second Amended Complaint. 147. Upper Deck denies the allegations contained in Paragraph 147 of the Second

Amended Complaint.

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148.

Upper Deck states that the allegations in Paragraph 148 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 148 of the Second Amended Complaint. 149. Upper Deck states that the allegations in Paragraph 149 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 149 of the Second Amended Complaint. 150. Upper Deck states that the allegations in Paragraph 150 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 150 of the Second Amended Complaint. Count Eleven Common Law Trade Mark Infringement Upper Deck’s Legendary Cuts Cards 151. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 150 as stated herein. 152. Upper Deck states that the allegations in Paragraph 152 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 152 of the Second Amended Complaint. 153. Upper Deck denies the allegations contained in Paragraph 153 of the Second

Amended Complaint.

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154.

Upper Deck states that the allegations in Paragraph 154 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 154 of the Second Amended Complaint. 155. Upper Deck states that the allegations in Paragraph 155 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 155 of the Second Amended Complaint. Count Twelve Common Law Trade Dress Infringement 156. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 155 as stated herein. 157. Upper Deck states that the allegations in Paragraph 157 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 157 of the Second Amended Complaint. 158. Upper Deck denies the allegations contained in Paragraph 158 of the Second

Amended Complaint. 159. Upper Deck states that the allegations in Paragraph 159 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 159 of the Second Amended Complaint.

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160.

Upper Deck states that the allegations in Paragraph 160 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 160 of the Second Amended Complaint. Count Thirteen Common Law Unfair Competition 161. Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 160 as stated herein. 162. Upper Deck states that the allegations in Paragraph 162 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 162 of the Second Amended Complaint. 163. Upper Deck denies the allegations contained in Paragraph 163 of the Second

Amended Complaint. 164. Upper Deck states that the allegations in Paragraph 164 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 164 of the Second Amended Complaint. Count Fourteen Deceptive Trade Practices Under New York Law (N.Y. Gen. Bus. Law § 349)

165.

Upper Deck repeats and incorporates its responses to the allegations in Paragraph

1 though 164 as stated herein.

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166.

Upper Deck states that the allegations in Paragraph 166 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 166 of the Second Amended Complaint. 167. Upper Deck states that the allegations in Paragraph 167 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 167 of the Second Amended Complaint. 168. Upper Deck states that the allegations in Paragraph 168 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 168 of the Second Amended Complaint. 169. Upper Deck states that the allegations in Paragraph 169 of the Second Amended

Complaint state a legal conclusion to which no response is required. To the extent a response is required, Upper Deck denies the allegations in Paragraph 169 of the Second Amended Complaint. WHEREFORE, Upper Deck denies that Plaintiff is entitled to the relief requested in Paragraphs A-J of the WHEREFORE paragraph of the Second Amended Complaint, or any other relief. AFFIRMATIVE AND OTHER DEFENSES First Affirmative Defense (Failure to State a Claim) 170. The Complaint fails to state a valid claim upon which relief can be granted.

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Second Affirmative Defense (Lack of Standing) 171. Plaintiff’s copyright claims are barred, in whole or in part, to the extent they are

based on alleged infringement of works for which Plaintiff does not (or did not) own or control the exclusive rights allegedly infringed. Third Affirmative Defense (Invalid and/or Unenforceable Certificates) 172. Plaintiff’s copyright claims are barred, in whole or in part, to the extent they are

based on alleged infringement of works for which (i) valid and enforceable copyright registration certificates do not exist and/or (ii) the relevant certificates contain materially false and/or inaccurate information relating to the nature, ownership or chain of title to the work. Fourth Affirmative Defense (Functionality) 173. Plaintiff’s copyright claims are barred, in whole or in part, because the allegedly

protectable features and/or characteristics of the works are functional. Fifth Affirmative Defense (Merger Doctrine) 174. Plaintiff’s copyright claims are barred, in whole or in part, by the merger doctrine. Sixth Affirmative Defense (Lack of Conceptual Separability) 175. Plaintiff’s copyright claims are barred, in whole or in part, due to the lack of

conceptual separability between any aesthetic elements and the functional aspects of the relevant design features. Seventh Affirmative Defense (Scènes-à-faire Doctrine) 176. faire doctrine. Plaintiff’s copyright claims are barred, in whole or in part, under the scènes-à-

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Eighth Affirmative Defense (Utilitarian Use) 177. Plaintiff’s copyright claims are barred, in whole or in part, because the allegedly

protectable features and/or characteristics of the works have primarily a utilitarian purpose. Ninth Affirmative Defense (Copyright Misuse) 178. Plaintiff’s copyright claims are barred, in whole or in part, by the doctrine of

copyright misuse. Tenth Affirmative Defense (Fair Use) 179. doctrine. Eleventh Affirmative Defense (Section 412) 180. Plaintiff’s claims for monetary relief in the form of statutory damages with Plaintiff’s copyright claims are barred, in whole or in part, by the fair use

respect to certain of the alleged copyrighted works is barred under 17 U.S.C. § 412, as Defendant’s allegedly infringing conduct commenced prior to the effective date of the relevant registrations. Twelfth Defense (No Willfulness) 181. Plaintiff’s prayer for statutory copyright damages is limited to the extent that

Plaintiff is not able to allege or prove facts sufficient to show that the alleged infringement was willful. Thirteenth Affirmative Defense (Statutory Damages) 182. Plaintiff’s prayer for copyright damages, whether actual or statutory, is limited by

Defendant’s innocent intent.

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Fourteenth Affirmative Defense (No Secondary Meaning) 183. Plaintiff’s trade dress claims are barred, in whole or in part, because the allegedly

protectable visual features of Plaintiff’s claimed trade dress are unoriginal, functional and have not acquired secondary meaning as that term is construed by applicable precedent. Fifteenth Affirmative Defense (No Distinctiveness) 184. Plaintiff’s trade dress claims are barred, in whole or in part, because the allegedly

protectable visual features of the claimed trade dress lack acquired distinctiveness. Sixteenth Affirmative Defense (Not Source Identifier) 185. Plaintiff’s trade dress claims are barred, in whole or in part, because the allegedly

protectable visual features of the claimed trade dress do not serve as a source identifier. Seventeenth Affirmative Defense (Non-Ornamental) 186. Plaintiff’s trade dress claims are barred, in whole or in part, because the allegedly

protectable visual features of the claimed trade dress are not ornamental. Eighteenth Affirmative Defense (Lack of Confusion as to Origin) 187. Plaintiff’s trade dress claims are barred, in whole or in part, due to the absence of

actual or likely consumer confusion regarding the nature, origin, source, sponsorship, or affiliation of Defendant’s products. Nineteenth Affirmative Defense (Trade Dress Fair Use) 188. Plaintiff’s trade dress claims fail because any allegedly protectable elements

included in Defendant’s products are being used fairly.

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Twentieth Affirmative Defense (Attempt to Monopolize Generic Design Features) 189. Plaintiff’s claims are barred, in whole or in part, because neither the Copyright

Act nor the Lanham Act permits a company to monopolize the use of common, generic product design features. Twenty-first Affirmative Defense (No Deceptive Conduct) 190. Plaintiff’s claims are barred, in whole or in part, because Defendant’s have not

engaged in any conduct that is likely to deceive reasonable members of the public. Twenty-second Affirmative Defense (Laches) 191. Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches. Twenty-third Affirmative Defense (Estoppel) 192. Plaintiff’s claims are barred, in whole or in part, by the doctrine of estoppel. Twenty-fourth Affirmative Defense (Waiver) 193. Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver. Twenty-fifth Affirmative Defense (Unclean Hands) 194. Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean hands. Twenty-sixth Affirmative Defense (Jurisdiction) 195. Plaintiff’s claims are barred, in whole or in part, because this Court does not have

jurisdiction over a claim for federal copyright infringement until the United States Copyright Office has either approved or refused the pending application for registration. Twenty-seventh Affirmative Defense (No Damages) 196. Plaintiff’s prayer for damages, whether actual or statutory, are barred or limited

because Plaintiff’s rights are commercially valueless.

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Twenty-eighth Affirmative Defense (No Damages) 197. Plaintiff’s prayer for damages, whether actual or statutory, are barred or limited

because no profits of Upper Deck are attributable to the alleged infringement. Twenty-ninth Affirmative Defense (Fair Use) 198. doctrine. DATED: New York, New York September 8, 2009 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Plaintiff’s trade dress claims are barred, in whole or in part, by the fair use

By:

/s/ Jessica A. Rose Robert L. Raskopf Jessica A. Rose Elinor C. Sutton

51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100 ATTORNEYS FOR DEFENDANT THE UPPER DECK COMPANY, INC.

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