Upper Deck appears to have made a serious misstep

In late 2008, Konami sued Vintage over allegations that Vintage was repackaging counterfeit Yu-Go-Oh rares for the secondary market. Following the discovery period in this initial case, Konami found that the counterfeit cards were coming from Upper Deck, its contracted distributor in the United States.
As often happens in commercial cases on this scale, both companies then pushed for summary judgment. Briefly, this involves going to a judge and asking them to just decide that your opposition doesn’t have a case. In this case, Konami would have been asking for summary judgment that Upper Deck committed counterfeiting, and Upper Deck would be asking for summary judgment that Konami had no case and therefore was committing slander and libel by suggesting it.
This did not turn out well for Upper Deck. A quick review of the Court orders concerning the various summary judgment motions shows that Upper Deck’s primary defense was that the manufacturing of fake Yu-Gi-Oh cards constituted “promotional activity”, which would be allowed under the 2006 agreement between Konami and Upper Deck. The court didn’t buy this argument: