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" "FEDERAL 'l' RADE COMI\ISSIO744DECISIONS67 F.Complaint3. Using the name :'ICar- Chance " orticsclesignfLte ,Chfmce Division of American Plas-any other name of simiJar import todescribe , or refer to respondent' s business.That the respondent herein shall , withinserviceupon him of this order , file with thcsixty (60) days afterCommission a report in writing setting forth in detail the mannerand form in which he has complied with this order.It is fwrtheT onleredIN THE J\IA TTER OFTOPPS CHEWING GU , INC.ORDEn , OPINIOX , ETC. , IN REGARD TO THE ALLEGED VIOLATIOX OF THEFEDERAL TR '.DE co::nIISSIODocT-ef846J.Carnplaint ,Jan. SO ,ACT196i2- Decislon ,Apr. 30 , 1965Order adopting in part and ITjecting' in part tl1e initial derision in this proceed-ing and dismissing,charged the Kationfor insuffciency of eYidence , the coilplaint whichs largest manufadurcr of bubble gum with head-XY" ,,,ith using unfair methods of competition ingaining control of the bas('ball picture card indllstry.quarters in Brooklyn ,CO:::'PLAIXTThe Federal Tra, de Commission , having reason to believe thatthe above- namecl respondent has 'Violated and is now violating thepTOvisions of Section 5 of the Federal Trade Commission Act (151J'C. Section 45), and it appearing to theCommission that a pro-ceeding by it in respect thereto would be in the public interest herebyissues its complaint , charging as fol1o\vs:is a corporation organized and existingBYf York , withunder and by virtue of the la"s of the State ofPARAGHAPH 1. Respondentits principal offce and place of business located at 254 86th StreetBrooklyn , :New YorkPAR 2. H.esponc1ent is nmy : and l1fts been for many years la, st pastdistribution and sa.le of bubble gum.In addition , re,spondent also sells piclnre cards , including cards containing the picture of a uniformed major league baseball player : orother professionH-l athlete : manager or coach , either separately or ineonneetion ",yith the sule of its bubbk gum products.\TI. 3. The. respondent is nmy , and has been for llan ' years lastpast , engaged in commerce , as '; commErce : i:: define, d in the FederalTrade Commission Act. Respondent m mufacture:: gnm in its fac-engaged in the manufacture ,

TOPPS CHE,n:\G GUI. E\C.745Complaint74-tory located in Brooklyn ,NC\y York ,and ships , or causes to bes ,ye11 as pictnre cards , via commonshipp , suchcarriers to \yholesalers and direct buying reta.il accounts located inmorc.handise , a,most of the States of the United States.Respondent is thela.rgest manufacturcr of bubble gum in theLDited States having annual sales of about 14 000 000 in ln industry ,YJth total annual sales in thc United States by aU manufacturersof approximately 830 000 000.P .AR.4. In the course and conduct ofrespondent is 11o\Y and has been inits business in commerceactive competition with othercorporations , firms and individuals also engaged in the manufacturedistribution and sale of bubble gum and in the dist.ribution a, nd saleof picture card products , except to the extent that competition hasbeen lessened and eliminated by the acts , practices and methods orl'E, SpolH1entherein alleged to be unla"ful.PAJL 5. Among children in the united States , the hobby of collecting picture cards has been practiced for many years and is const.antly growing in popularity. The most common type of caTd , andthat with which this matter is primarily concerned , is approximateJy31/,( x12"in size , having a picture of an athlete on one side andhis brief biography on the other side. Cards are also distributedand collected ,vhich contain pictures of many other 8ubjects suchas old automobiles , cowboys and Indians and famous men. Althoughin some instances the picture cards are sold separately, they aremore commonly distributed -and sold in a combination package withbubble gum.The most popuJaT picture cards by far aTe those containing pic'-tures of inajar league baseball stars. Children engaged in collecting.the e cards "ill only purchase bubble gum which is packaged or accompanied with a baseball picture card. The market for bubble gumpackaged and sold in combination with baseball picture cards andthe market for baseball picture cards sold separately are cachsubstantial.\R. 6. In the course and conductof itsbusiness in commerceand is now , engaged in unfair methods of competition and unfair acts and practices in that it has completely forerespondent has been ,closed competitors from the aboyc- described baseball picture carelmarkets by entering exclusive picture card contracts with almost anmajor league basehall players (approximate1y 414 out of thc totalof -:1-:21) ancl with practically all minor league players h lving amajor lengue potential (approximately 1 500). Said contrftcts grant378-7(171-

746FEDERAL TRADE COMMISSION DECISIONSComplaint67 F.to respondent the exclusive right to nee the player s picture , nameand biography on picture cards.Players are first approached and signed to contracts while playingin the minor leagues. These contracts , entered for a nominal consid-, bind the players to rcspondent when , and if , theyget into the major leagues for their first five full seasons of play.The contracts are renewed and extended for various periods untilthe player s retirement. A clause in the contract provides that theeration of 65.player wil not:" * '" grant to others the rights granted to Topps hereunder , or any rights, whether 8ueh grant or rights to others be fOl" the term of thi8similar theretocontract or any part thereof , or ' whether they be for a time commencing afterthe expiration of this contract.In most instances the respondent does not give copies of these contracts to the players , and they are unaware that they are boundby the terms of the contract , from granting future picture cardrights to any person or corporation other than respondent.The respondent has ,by and through a number of means ,ing threats of legal action and secret payments toor agents in the employ of baseball players ,includ-represent.ativescffectiyely frustratedthe efforts of its competitors to secure the rights to use the picturesnameS and biographies of baseball players on baseball picture cardsand has thereby foreclosed and prevented said competitors fromselling their products , including bubble gum , to substantial markets.PAR. 7. Through the medium of the aforesaid acts and practicesand certain other mea, ns and methods , the respondent has createdand effected a monopoly in the manufacture and distribution of baseball picture cards , in commerce , contrary to the public policy of theUnited States and to the detriment of free and open competitionin the bubble gum and picture card industries.PAR. 8. The acts and practices of the respondent as hereinabovealleged are to the prejudice and injury of the public and coustituteunfair methods of competition and unfair acts and practices in commerce within the intent and meaning of Section 5 of the FederalTrade Commission Act.Mr. J wnes P. T'/ 7nonyand Jlr.David11.Nelsonof \Vashington, for the Commission.Arent , Fox , IOntner , PlotkinMr. Earl W. Kintnerand iJh.I( ahn of \Vashington ,Sidney HarrisD., byfor the respondent.

------- - ----- --- ----------------------------- --------------- --- ------------------- --------------------------- ------ -- ---------------- --------- ------------------------------- ---------- --, "TOPPS CHE1,VING GUM ,744I747Initial DecisionINITIAL DECISION BY HER:'fAN TaCKERAUGUS'l'EXAMIHEARIXG, 1964TABLE OF CO"TEXTSPfl(jIntroduction- - - - -The Cornplaint - - --- - --The Ans\ver ---The Course and Conduct of t.his Proceeding---- u---Picture Cards in General and Baseball Picture Cnrds in Particular nBubble Gumn n----nBaseball Card Contracts in the Courts----nThe Topps ' Contracts with Ballplayel's--- --n--n--What Attracts the Ballplayers to Topps? - n n --nThe Struggle for Contracts with BallplayersThe Renewals and Extensions--nn ---------ature of the Contract--The ExclusiveCopies of Contracts for Signatory BallplayersThreats of Legal Action "Ti1- nnThe Consideration in the Contracts-747748750752754760761765un n nnu n nSecret Payments to Representatives or Agents in the Employ of7737777797817857S7793Baseball PlayersOther Means " to Frustrate Competitors ' Efforts to Secure Base-ball Card Rights- - - - --- - --- - n n- - n- n- n- - n- - n- u --- --11onopoly - - - - - - - - - - - - - - - - - - - - - - - - - -The Current Baseball Picture Cards MarkeLCurrent Baseball Picture Cards as Articles of Commerce or Promo-tional Deviees---- n -- - n- - - - n - - n- n- - nnnn uu - nTopps ' Control of Current Baseball Picture Cards as a PromotionalDevice - -Alleged Additional Restraints- - n n- n - n - .n - n - n- -- - - --- - nRespondent' s Arguments on Issue of l'vlonopoly-- - nu-- -Respondent has Monopolize d a Part of Trade or Commerce \Vithin2 of the Sherman Antitrust AcL -- nnthe 1'Ieaning ofThe Form and Content of the OrdeL --nn nnn n n nh - -Findings of Fact nConelusions - --- -- - - - l\Iotion to OpenIn CameraExhibits-- -- --n n n--nnn n n-Ordcr ----The :Federal Trade COlDlnission ,787800804807809812815822823826833834834in a c.omplaint issued J JllUary 301962 , has charged Topps Chewing Gum ,Inc. , with creating andeffecting a monopoly in the manufacture and distribution of baseballpicture cards in commerce by resorting to various acts a.nd practicesallegcd to be unfair and to constitute unfair methods of competitionin commerce -within the intent and meaning of Section 5 of theFederal Trade Commission Act.138 Stat. 719; 52 Stat. 111; 15 U.provIded" % 45; in wbleh , by SectionUnfaIr methods of competition in commerce , and unf'lir oror practices in commerce ,are hereby declared unlawful."5(a) (1). it isdeceptive acts

748FEDERAL TILWE CO:\L\fISSION DECISIONSComplaintG7 F.The respondent appeared in this proceeding and was representedby counsel. ,Vhile admitting llumerous facts alleged in the COllplaint , it denied all allegations which might. serve as a basis for theissuance or an ordEr. A full hearing has been heJd at which all e'ic1ence in support of the complaint and in opposition thereto hasbeen received. Counsel supporting t.he complaint have submitted"'hat they call Proposed Findings of Fact and Conclusions and aproposed Order to Cease and Desist. R, espondent also has submitted\vhat it calls Proposed Findings of Fact , Conclusions of La\v and abrief in support thereof. It contends there has been an utte.r fa.ilureof proof and that the complaint ought to bc dismissed. (As to thestruct.ure of findings of fact , seeSlatesv.Capital Transit Co.C. three juclge court , 97 F. Supp. 614 at 621;Sh",?,!es Chemicals ,Inc.A. 6 , 1954 ,209 F. 2d 645;v.UnitedLR.LR.B.Newpod News 308 U. S. 241. ,Yhat both sides submitted was a de.tailecl and most helpful abstract of their ,'iews of what is containedin the transcript of testimony and exhibitsbut neither submittedproposals which could become the subject of rulings within the contemplation of Section 8 (b) of the Administrative Procedure . 'cetand Section 3. 19 of the. Federal Trade Commission s H, ules of Practice for Adjudicative Proceedings. The text of this decision , as aconsequence , will have to be regarded as the Examiner s rulings onall issues presented.THE COMPLAINTThe complaint alleges that respondent is the largest manufacturerof bubble gum in the United Sates and that it is engaged also inthe sale of picture cards ,which include cards containing the pictureof a uniformed major league baseball player or other professionnlathlete , manager or coach. The cards are sold either separately or inconncction with the sale of bubble gum. It is aJleged further thatchildren in the United States have a hobby consisting of thc collec.tion of pictnre cards ,that this hobby is growing constantly in popu-lnrity and that the most popular eftI'd is31h21hinches byinches insize on one side of which is printed an athlete s picture and on theother his brief biography. .While there are other picture cards such asca.rds showing old automobiles cQ\,boys and Indians , and famousmen , it is alleged that the most popular are those containing pictun s of major league baseball stars and their biographies or stat.istics relating to them. It is aJleged also that , although in somedistributedand sold more commonly in a. combination packa, ge with bubble guminstances the picture cards are sold sepaTate.1y, they arc

, ", ,TOPPS CHEV/L'\G Gr1I .749INC.Complaint744and that Children engaged in collecting these cards, (meaningthose containing pictures of major league baseball stars) will onlypurchase bvbblegu1l ",yhich is packaged or accompanied with a base.ball picture card.Following all this and various allegations to support jurisdiction , the alleged unfair methods of competition and unfair acts andpractices are set forth. In substance , the complaint attacks what isalleged to be " a monopoly in the manufacture and distribution ofbasebal1 picture cards , in commerce* * to the detriment of freeand open competition in the bubble gum and picture card industriesand asserts that this monopoly was effectuated by the respondentby resorting to certain acts or practices as follows;(1) Foreclosing competitors from the alleged " baseball picturecard Inarkets by entering exclusive picture card contracts with almo,:tall major league baseball players (approximately 414 out of thetotal of 421) and with practieally all minor league players havinga major league potential (approximately 1,500), (which) contract,grant to respondent the exclusive right to use the player s picturename and biography on picture cards.(2) Respondent gets these contracts by approaching first the pIa)'ers in the minor leagues and binding them " for a nominal consideralion of 5. 00 * ., * to respondent when , and if , they get into themajor leagues for their first five full seasons of play.(3) Respondent rene,ys and extends these contracts " for variousperiods until the player s retirement.(4) It imposes all the players an obligation not to " grant tuothers the, rights grantt:rl to Topps * ':' ':' or any rights similar theretoI'hcther snell grants 01' l'ights to ollwl's be 1'01' the term of (the) contract or any part thereof , or whether they be for a time commencingafter " its expiration.(5) Respondent " doesnot give copies of these contracts to thepla.yers , a,nd they are unaware that they are bound ,of the contract, from granting future picture carelby the termsrights to anJperson 01' corporation other than respondent.(Ci) Respondent hns fl'Hst.ratec1 its compcritors from sec.uring allrights to the U:38 of the pi.ctllres , llftJlCS und lJiographies of baseballphyers on basebn,11 picture cards " by and through a number ofmeans , including threats of legal action and secret payments to representatives or agents in the employ of baseball players.(7) It " has thereby foreclosed and prevented said competitorsfrom selling their products , including bubble gum ,markets.to substantial

750FEDERAL TRADE COi\lMISSION DECISIONSAnswer67 F.It is necessary always to remember that this complaint is broughtunder Section 5 of the Federal Trade Commission Act. Itsalle-gations must be interpreted and construed from the viewpoint ofwhether ,in fact ,what respondent has done to secure its positionin its business , whether it be the sale of picture cards or the saleof bubble gum or the sale of a combination of both was done bythe use of " unfair methods of competition in commerce ,and unfairor deceptive acts or practices in commerce * * * . " This is the conduct made unlawful (Section 5(a) (1),supra).The law does notcondemn enterprise or ingenuity in business. It does not condemnsuccess in business. It does not protect businessmen from competitors.It does not reward or come to the aid of ineptitude or ineffcieucy inbusiness. It protects only competition , and it proscribes that com-petition which is conducted through the medium of unfair acts andpractices.To support an order in this proceeding,it is not necessary thatfindings be made that all the acts charged in fact have been committed. Even if all arc not found to have been committed , remedialaction can be and should be taken to requirc the respondent to ceaseand desist from such of its a.cts as are found to have been unfairor deceptive. Alternatively, even if each of the acts charged , takensepa.rately, was not unfair , the circumstances could be such that thesum total of them resulted in an unfairpractice. Remedial actionaJso would be indicated in a case of that nature. Furthermore , thatthe case is concerned with a product Eke bubble gum or with aproduct like lmseball picture cards , or with a product that may besold for as little as one cent , or with a product the usual packageprice of which ma,y be fiye cents , is wholly immaterial. The publicinterest ma.y be afIected jf the acts and practices involved havesubstantial impact in interstate commerce.THE A"swERRespondent ,in its answer, says that , to the extent that there iscompetition in the sale either of baseball picture cards or bubblegum or in the sa.le of a combination of both , such competition hasnot been lessened or eEminated by any ofits R,cts ,practices ormethods. It denies that there, is " a market for bubble gum packagedand sold jn combination ' withbaseball picture cards " to the exc.u-the market for gum and the market for picture cards " orthat there can he a distinction between " a market for baseball picture cards sold separately * * * from the market for picture cards.sian of "

TOPPS CHE\VING GUM .744751rAns'verIt denies that its proeedurcs for obtaining excl115i\' e contracts withhaseball pla, yers Cwhether in the major leagnes or the minor leagues)are unfair and asserts " that copies of contracts are given to ballplayers \vho request sllch copies at the time they sign theIll and thatcopies of the form of contract are madc generally available to basebelll players. It. denies that its contracts or its nwthods for obtain-ing such contracts aTe nnfair practices. It dcnies that it '; has createdand e, ffected f1 monopoly in the manufactnre and distributionbasebal1 picbu' e cards , , ':' '.' t.o the detriment of free :J, ncl open competition in the bubble gum and picture card illdustries , and itdenies also that its acts and practices ,as al1eged in the complaintarc to the prejudice a.nd injury of the public and constitute unfairmethods of competition and unfair acts andpractice.s in commcrcewithin the intent and meaning of Sccdon 5 of the Federal TradeC0l1mis5ion Act.Five affrmative defenses are pleaded. The first is that its relationswith the ball players do not directly affect interstate commerce andconsequently are not within the scope of the Federal antitrust laws.(This does not seem to have been pressed. ) The second defensethat baseball picture cards are available to the public from numerousSQnrces other than Topps. Interwoven with this defense is an argument (which also seems not to have been pressed) that picture cardsare collectors ' items having no other functional value and conse-quently are not items of trade. Thirdly, it contends that , to thc extentthat baseball picture cards arc utilized in connection with the saleof chewing gum and other confectionery products , they are onlyone portion of a much larger market consisting of aD promotionaldevices utilized in connection ,,-ith the adver6sing and sale of suchproducts. It asserts that its competitors have not been frustratedin the promotion and sale of their products becauseother types OTpicture cards and other promotional devices or sale, s aids are available to them. As a consequence , what Topps has done in connectionwith obtaining exclusive contracts with baseball players has " nottended to create or effect any monopoly in the large competitivemarket consisting of the various means of promoting sales. " Thefourth defense is that baseball eards , in and of themselves ,are nota market or are not the relcvant market; they fire only part ofmuch larger market consistingof "every kind of picture card inconnec60n ,,- ith numerous kinds of products other than coniecAs a consequence , its activities " have not tended tocreate or effect any monopoly in the market consisting of the distribut.ion. and sf!1e of picture carcls. Finfln , its fifth defense is totionery items.

FEDERAL 'l' RADE CO \DIlSSION DECISIOKS75207 F.Answerin and of themselves , do notconstitute a market but , if a market is involved , it includes all fOl'mof " chewing gum and other confectionery products sold in packagesthe eftect that bubble gum products ,at prices compn, rableto those of respondent' s products. "Its activitieshave in no ,yay inierfered with the efforts of other manufacturersof chewing gum and other confectionery products to distribute andsell their products , all of which are competitive with" its chewinggum products. Consequently, its activities have not been detrimentalto "free and open competition in the market for chewing gum andother confectionery products.THE COURSE AND COXDUCT OF THIS PROCEEDINGEarly in the case, it became kno n that coullsel supporting thecOlnplaint intended to inject numerous matters into this proceedingnot re"dily apparent from specific facts sct forth in the complaint.They gave notice of their intention to inject the matter of this 1'6-sponclent s acquisition of all the gum- producing fa. cilities and base-and footballtheretoforeowned by Bowman Gum Company, later IIaelen Laboratories , Inc.lgreement on the pnrt of Eo,,- man not to manucoupled with anfacture or sell gum or picture cards for fi VB years. Although thisbnJl plaTcrsplayers : picture rights, it hadovertones of a C1ayton Act , See.happencd in January J 956, Section 18), but the proceeding had not bee.7 case (15 U.as given also that Topps had engaged in " tle- ' sales practices , in discriminatory practJces of refusing to sell its baseball picture cards to vending rnachinc operatorsor cleliberately delaying c1eliverie. s to thell and in seeking to controlTesale prices of its baseball picture cards- all not alleged in the complaint. Respondent consistently objected to the introduction of thesebrought under that Act. Noticematters and both sides regarded them as "issues. " The Examinerfreqnently reminded conn el of his laek of jurisdiction to change the(Standard Ocunera OOl'poi' ation.form or theory of the complaintDoeket Xo. 8-1G9on' lIber1963). He suggested to Commissionor change the forn1ncT\issuescounsel that if he wanted to injectof the complaint ,the proper procedure would be to apply for anenience of Section 5, Pretrial Order of12 , 1862). There has been no flrnendment. The IIearingamended complaint (hutOctoberould re, ceive evic1enee in supportExaminer ruled , hOT\ever , that heof the charges ",ith respect to the Bowman acquisition , the allegedtie- in praetic.es, the aUeged attempt at resale price m rintenance andtI18 alleged discJ'imin tions aga. inst yen ding ma. chine opeTators , not

, "TOPPS CHEWIXG GVld )753INC.Answer744bec.ause he regarded them as'issues but because they could be con-sidered as evidence tending to show the building up of amonopolyor the maintenance a, nel exerc.ise of 111onopoly power (last sentenceof second paragraph of order dated August 8 , 1963; see also orderselated February 12 , 1963 , September 6 , 1963 , and November 19 , 1963).Evidence of this nature has been received over respondent' s continuing objection. The recent aecision of the Commission inOaillou Packing Comp((ny lnc. Docket No. 7887 , PagesGrandS to 14 , in-clusive , Commission Slip Opinion , vindicates this course of procedure. (.unc 4 ,196'1.)There have been many intermediate motions , orders , appeals , rulings by the Commission , and even a "Cnited States District Courtaction seeking to block the Commission s continued prosecution ofthis case. It is wholly unnecessary to review all this shadow- boxingexcept to refer particularly to tlVO intermediate opinions of theCommissiono In a decision and order dated November 15 , 1962 ,Commission saidtheThe cOlllplaint in this proceeding charges thatrespondent has ' created and effected a monopoly in the manufactureand distribution of baseball picture cards ' in "iolation of Section 5of the Fedm al Trade Commission Act. The complaint is premisedupon a ' relevant market' of baseball picture caTc1s sold alone or incombination with bubble gum * * ::: . The complaint as drawn willrequire presentation of ev-idence establishing that the distributionof baseball picture cards ,either alone or in conjunction with bubblegum , constitutes a distinct market. : This expression on the part ofthe Commission was refined in a later opinion issued July2 , 1963.The Commission there said:if. as the complaint implicit1J alleges ,such IJichlre curr7s are sold ootn3Cjj(iTUtdy anel in conjunction with other pror71/et8 , the lef)aUty of respondent'lJractices C(ln be determined bV exam' ining their probable effect 1 pon compeU-tion edher in the saln of the picture cards themsclrcs or ii1, the sale of theThus , there are in this case twoproducts 1r;ith whi.ch they are distrib1iterl.Whether baseball picture canls are sulflcientlypotential market issues: (1)dif.inct from othC1kinrls 0/rdsjJictll/'c crl,or si'milar pictnrc (lcviees to maJto other.\ whOljli(Jht 1lJsh to 8CI/ them or 1(,"e them ,for lJrouwand (2) whethel' bubble gUil , theNonalP1j. 'jose, cornpctiU1;cly 8i(Jnijicant;product with which l'psponc1p.nt distributel1 baseball picture cards , is suffcientlytheir forcclos1u' Cdistinct from other gums ,candies or confections to mflke COm1Jetiti,elysignifi-eRnt the forecJosul'C of a promotional deyice to other bubble g1.11 manufacturcrs,Depending upon ,,- hat complaint counsel is prcparen. to provc , 11Owe-ver , bothof thf-se marl et issues may be avoidec1. If comp1aint counsel is prcpared toprove that baseball picture cards account for a suffcient share of all picturefinang:emellts foreclosed asubstantial share of this larger market , the existence of a narrower marketcarr1s or devicE's so that respondent' s exclusive

"'" "''" "754:FEDERAL TRADE CO IMISSIOX DECISIO:-TSAnswer67 F,limited to baseuall picture cards would be irrelevant , " * * Similarly,if CQJI-JJlaint CQUJ/3d is prcpnr' ed to prove , as the contract provision set out in thecomplaint indicates , that respondent' s excluKi've arranqement. 8 foreclosed the useof baselw7l pictnre card8 to an producers oj 9U1I8 , candics and Grmjcctions , the(,;ristcncc of (I, n(IITo/eer 1J(lrl:et limiterl to bubble gWIJ!Gonld be -irrelevant(Emphasis added.In response to the Commission s direction , the Hearing Examinerissued an order (July 5 , 1963) directing counsel supporting t.he com-plaint to state what he intendedto prove and the markets uponwhich he intcnded to rely. Counsel supporting the complaint filedwhat he called a Statement of Market and Proof , to which he attached a Pl'ehearing 1\ a.rrative previously filed. The 1-Iearing Exam-iner found this unsatisfactory and not responsive eitherto theCommission s direction or the Hearing Examiner sordcr. Connselwere directed to appear before him. During the conference whichensued counsel supporting the complaint finally stated that he wasprepared to prove " that respondent' sexclusive arrangements fore-dosed the use of baseball picture cards to all producers of gumscandies and confections. " Acting upon the Commissions delineationof " two potential market issues :: in its prior decision , the HearingExaminer , in the order dated August 8 , 1963 , ruled " that there isonly one market issue in this case , and that is:, whether baseball picture cards are suffciently rlistinct from other kindof picture cards or similar picture deyices to make their foreclosure to others\';110 might wish to seli them or nse them for promotional purposes competiti.elysignificant.Despite all this , practically all the market evidence was concernedwith the relation of baseball picture cards to bubble gum anel withpicture cards alone , but , again , over responc1ent: s objection , the Examiner agreed to receive such evidence on the grolU1d that se1181'3of bubble gum could be regarded as coming within the more inclusi\'word " others " \yhich had been used by the Commission.PIC1TRE CARDS IN GEXERAL AND BASEBALL PICTURECAUDS IN PARTICULARIt is a.lmost a certainty that anyone reading this decision has seenare, involved in this proceeding a,nel knowswhat they are. The illustrations which ","ill be inseTted below aretypicaJ and suffciently instructive to make up for any lack offamiliarity. The eonte, nt or subject of a picture card is rmd eo., n beas varied as the ingenuity, imagination or resourcefulness of thedesigner or producer. Thel'E is nothing new or modern a, bout picturepicture cards snch as

CHEWIXG GUM ,TOPPSINC.755Answer744cards. They have been produced and utilized for almost one hundredwithout cont.ra.diction , that some " date back beyond recorded history. " Actorsyears. Counsel supporting the complaint suggests ,actresses , sports personalities , governmental officials , military personnel , license plates , comics and cartoons , cowboys , the 'Vilcl,Vestflags , events (both current and historical), phenomena of naturemotion picturet1d television sources, all have provided materialfor the content ,design and production of picture cards. As promotional devices in the candy, gum and confection field , we have seenthem sold with caramels ,Cracker Jacks ,baked goods , soft drinksice cream antl gum (CX :213 , pp. D2- 12S)" Since gum has been givenso much emphasis in this proceeding, it may be well to observe that asingle manufacturer (not Topps) marketed gum with Indian cardsin 1932 (Tr. pp. 831 , 834) and with baseball cards from 1933 until1942 (Tr. pp. 825- 843;CX 98- D). That gum manufacturer was notuti1ize

tures of inajar league baseball stars. Children engaged in collecting. the e cards "ill only purchase bubble gum which is packaged or ac-companied with a baseball picture card. The market for bubble gum packaged and sold in combination with baseball picture cards and the market for baseball p

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