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FLEER CORP. v. TOPPS CHEWING GUM

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA.


July 10, 1980

FLEER CORPORATION
v.
TOPPS CHEWING GUM, INC. and Major League Baseball Players' Association.

The opinion of the court was delivered by: NEWCOMER

ORDER

AND NOW, to wit, this 10th day of July, 1980, in accordance with the Findings of Fact and Conclusions of Law entered in the above-captioned case on June 30, 1980, it is hereby Ordered as follows:

1. Defendant Topps Chewing Gum, Inc., is permanently enjoined from:

 a. enforcing or threatening to enforce in any court or in any other manner the exclusivity clause in its form contract with major league baseball players;

 b. entering into or seeking to enter into any contract with any major or minor league baseball player which reserves to Topps any exclusive right to sell that player's picture in any form or in combination with any product;

 c. entering into, amending, or seeking to enter into or amend any contract with any major or minor league player so as to expand or enlarge the scope of the rights now held in its form contracts with major and minor league baseball players;

 d. entering into any renewals of its form contracts with any major or minor league player for longer than two years at a time;

 c. enforcing or threatening to enforce in any court or in any other manner the term in its form contracts with major and minor league players and/or with the Major League Baseball Players Association, reserving to Topps the right of first refusal as to the marketing of any product.

 2. Defendant Major League Baseball Players Association shall:

 a. give careful consideration to any applications it receives from persons or companies seeking licenses to market baseball cards;

 b. before January 1, 1981, grant at least one license (under its group licensing program) to market a pocket-size baseball card product, to be sold alone or in combination with a low cost premium, in packages priced at 15 to 50 cents, which license shall include the right to use the name and picture of every member of the Major League Baseball Players Association who has signed a commercial authorization contract;

 c. grant at least one group license (such as is described in paragraph 2b, supra.) to the Fleer Corporation, if the Fleer Corporation, before January 1, 1981, matches any final offer for a group license made by any person or company (in the event that no offers are received from persons or companies other than the Fleer Corporation, the Fleer Corporation shall nevertheless be granted such a license on whatever terms the Major League Baseball Players Association can negotiate under the circumstances);

 d. consider granting as part of any group license granted under paragraph 2b, supra, the right to sell baseball cards alone (subject to any proceedings conducted under paragraph 2e, infra.)

 e. advise the Court within ten days of the date of this Order whether the Major League Baseball Players Association will, under the terms of its commercial authorization contracts with its members, exercise the rights to consider applications for licenses, and to license any company to sell baseball cards alone or in combination with gum, candy or confection;

 f. maintain at least one group license (such as is described in paragraph 2b, supra.) in effect for every baseball season in which the Major League Baseball Players Association conducts its group licensing program.

 3. Defendant Major League Baseball Players Association is permanently enjoined from.

 a. considering any revenue either it or its members derive from its royalty contract with Topps Chewing Gum, Inc. (trial exhibit P-1), in deciding what group licenses to grant under paragraph 2b, supra;

 b. entering into any exclusive licensing agreement for the sale of baseball cards, except that it may grant exclusive licenses (exclusive in the sense that they may be the only ones of their kind issued by the Major League Baseball Players Association) to sell baseball cards with carefully and specifically described premiums in such a manner as not to vest in any company or companies the exclusive right to sell baseball cards with any general type of premium, including, but not limited to, bubble gum, chewing gun, candy or non-confectionary items.

 c. entering into any contract or licensing agreement whether designated "exclusive" or otherwise, which would diminish any non-exclusive rights held by Topps Chewing Gum, Inc.

 4. In the event that Fleer Corporation, as of January 1, 1981, has not been granted a license under the terms of paragraph 2c, supra., the Court will hold a hearing to determine whether the Fleer Corporation has been accorded as complete and fair an opportunity to enter the baseball card market as it would have enjoyed but for the defendants' unlawful conduct, and the Court will at that time grant appropriate relief if such relief is warranted.

 5. Topps Chewing Gum, Inc. may continue to enforce its right to prohibit any player from granting to another any of the rights held in Topps's form contract until Topps's final appeals have been exhausted, except that Topps may not oppose in any court or in any manner any player's granting similar or identical rights to the Major League Baseball Players Association (see paragraphs 2e, 3c, supra.).

 6. In the event that the Major League Players Association does not believe itself to hold the rights to license baseball cards alone or in combination with gum, candy or confection (see paragraph 2e, supra.), the Court will shape such injunctive relief as is required to ensure that meaningful competition as to such products will be possible.

 7. The Court will retain jurisdiction over the implementation of this Order for a period of three years, which period is subject to extension (upon proper application) if circumstances warrant.

 AND IT SO ORDERED.

19800710

© 1992-2004 VersusLaw Inc.



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