Not Your Typical Mark. When the Authentication Mark Is the Problem: What Upper Deck v. Pixels Teaches About Trademark and Collectibles

There is a particular type of trademark that exists not primarily to identify commercial source, the traditional function of a trademark, but to certify authenticity. The hologram sticker on a trading card, the tamper-evident seal on a pharmaceutical package, the watermark embossed on a certificate: these marks function as guarantors. They say, in effect, "this item is real." The question that a recent federal case raises is a genuinely odd one: when someone reproduces an image of an authentic item — the original hologram and all — are they infringing the authentication mark?

The answer from The Upper Deck Company v. Pixels.com LLC is complicated. It is also more important to anyone in the collectibles, memorabilia, or print-on-demand business than they might initially assume.

The Upper Deck Hologram and How It Works

Upper Deck introduced its hologram sticker program in 1995, at a moment when the sports trading card market was awash in counterfeits. The hologram — a small, distinctive foil sticker placed on the back of authenticated cards and on certified memorabilia — served a dual purpose. It was an authentication device that collectors could verify, and it was a registered trademark. Upper Deck built out an entire database allowing consumers to look up a hologram's serial number and confirm that a piece of memorabilia was genuine.

The three hologram marks used by Upper Deck across its different product lines are registered trademarks of The Upper Deck Company, Inc. This is not a common-law claim — the company secured federal registrations. The hologram, in other words, is both a technical authentication tool and an independent trademark that Upper Deck can enforce.

The Pixels Case: What the Dispute Was Actually About

Pixels.com is a print-on-demand platform. Users upload images and Pixels produces and ships merchandise bearing those images — posters, canvases, phone cases, and the like. A user uploaded images associated with Michael Jordan trading cards. Those images included the trading card fronts, which feature Jordan photography, and — because the images depicted the actual cards — the small hologram mark that appears in the corner.

Upper Deck filed suit asserting infringement of both the underlying photography rights and the hologram trademark. Pixels moved for summary judgment, arguing that its users were simply displaying historical items accurately — the cards existed, the holograms were on the cards, and reproducing the image of a real card is not the same as affixing a fake authentication sticker.

The court denied summary judgment. Applying the standard likelihood-of-confusion factors, it found five factors favoring Upper Deck, two favoring Pixels, and one neutral. That outcome does not resolve the case — it simply means the dispute goes to trial — but the analysis reveals some genuinely interesting fault lines in trademark doctrine.

The Core Doctrinal Problem

The interesting tension in this case is not one that trademark law handles cleanly.

A hologram trademark, when it appears on a genuine Upper Deck card, serves its intended function perfectly: it identifies Upper Deck as the source and certifies the item's authenticity. When Pixels reproduces an image of that card, the hologram in the reproduction is not an authentication device — it is part of an accurate image of an existing object. No one looking at a print-on-demand poster of a Michael Jordan card is receiving the hologram as an assurance that the poster is an Upper Deck-certified collectible. The hologram's authentication function does not transfer to the reproduction.

That argument appeals to common sense. The trademark problem is that it does not quite square with how the Lanham Act works. Likelihood of confusion analysis does not turn on whether a sophisticated consumer would be deceived. It turns on whether an ordinary consumer might be confused about source, sponsorship, or affiliation. An ordinary consumer looking at a poster of a Michael Jordan trading card might reasonably — or at least arguably — believe that Upper Deck licensed or endorsed the product. The hologram in the image, rather than dispelling that confusion, might actually amplify it.

The court's five-to-two split on the confusion factors reflects exactly this tension: the case for Pixels has real weight, and so does the case for Upper Deck.

What the Case Means Beyond Trading Cards

The questions this case raises extend well beyond the specific dispute between Upper Deck and Pixels.

The print-on-demand industry has grown substantially, and the platform model — where operators enable user uploads rather than creating content themselves — has its own set of legal exposure questions. Secondary liability for trademark infringement remains an active area of litigation, and cases like this one define the outer boundaries of what platform operators must monitor and what users may post.

For sellers of authenticated memorabilia, the case is a reminder that authentication marks carry trademark status and can be enforced independently of the underlying item's copyright. A business that reproduces or depicts authenticated collectibles in promotional materials, catalogs, or digital listings should think carefully about how those marks appear in its content.

The NFT space also has a version of this problem. As authentication mechanisms migrate to blockchain-based certificates — and as the 2026 Nice Classification updates have now made "downloadable digital files authenticated by non-fungible tokens" an explicit Class 9 category — the question of what an authentication mark signifies, and who controls its reproduction, is going to arise in new and interesting ways. An NFT that includes an image of a physical collectible bearing a registered hologram mark inherits this same doctrinal tension.

The Broader Trademark Function Question

The deepest issue the Pixels case raises is whether trademark law, designed primarily to prevent consumer confusion about commercial source, is the right tool for protecting authentication systems.

Authentication marks serve a certification function that is distinct from source identification. When I see the hologram on an Upper Deck card, I am not primarily asking "who made this card" — I already know it is an Upper Deck card from the front branding. I am asking "is this card genuine." The hologram answers the second question, not the first.

The Lanham Act has a certification mark category, separate from ordinary trademarks, that exists precisely for this purpose. A certification mark indicates that goods or services meet the certifier's standards — which is functionally what Upper Deck's hologram does. Certification marks carry different use rules and different enforcement theories. Whether Upper Deck's hologram is better analyzed as a certification mark than as a conventional trademark is a question the Pixels litigation may eventually force into sharper focus.

The Practical Takeaway

For practitioners and businesses, the Upper Deck v. Pixels case stands for a few concrete propositions.

First, authentication marks are enforceable trademarks, not merely technical security features. If your business sells authenticated goods — sports memorabilia, luxury items, collectibles — the authentication mechanism may carry separate intellectual property protection that you are not currently asserting or protecting.

Second, accurately depicting a genuine item does not necessarily insulate a reproduction from trademark liability. The argument that "I was just showing the real thing" is not a summary judgment winner in the Ninth Circuit, at least on these facts.

Third, print-on-demand platforms face genuine exposure when their users upload images of branded, authenticated goods — even when the platform itself did not create the infringing content. The platform's knowledge and response to notice remain relevant, but the underlying liability question is not foreclosed by the user-generated nature of the content.

Authentication marks occupy a curious corner of intellectual property law — where trademark doctrine meets fraud prevention, where the primary function of the mark is not commercial identification but verification. The Pixels litigation has brought that corner into the daylight. It is worth paying attention to how the case resolves.

Jonathan Phillips is an intellectual property attorney in Peoria and Chicago, Illinois. He represents clients in trademark, copyright, and unfair competition matters. This article is for informational purposes only and does not constitute legal advice. Contact him Here.