Monday, February 9, 2009

O(Pee-Chee)h No, They're Going to Get Sued!!!

I'm not one to advertise the Evil Empire's products, but what I saw today on the old Magazine-Exchange website made me think that Topps couldn't have gotten a hold of their lawyers fast enough to get a restraining order or a cease and desist order (I'm not a lawyer, I don't know what actually applies here).

So Upper Deck has the rights to the O-Pee-Chee brand name. And it's bad enough that even before this newest development, their "UD Vintage" line first ripped off the 1963 Topps design, and then the 1971 design the following year (okay, close enough). Then this year, UD included an 50 card OPC insert set that looks similar (thank goodness not close to) the 1975 set. But this...THIS!!! This is just asking for a lawsuit.

The 2009 UD O Pee Chee sell sheet was modified for the purpose of this blog post. After all, who here actually wants to see UD products on a Topps blog???

It was bad enough that the UD company took Topps' Allen & Ginter concept and turned it into Champs Hockey, but this takes the cake. Now the questions remain:

  • Does Topps have a legitamate complaint here?
  • Should Topps do something to stop this product from leaving the factories?
  • Is this another way UD is getting back at Topps because of their failed attempt to buy the company?
All we can do now is wait and see...


JayBee Anama


dayf said...

I dunno, I'm on the fence about this. Taking the Topps design and calling it O-Pee-Chee is sneaky and I admire sneaky. I have the configuration of the 6-card hockey O-Pee-Chee packs, BUT if there is one subset AND one retro per pack I won't mind as much. I ind of dig the base design because it looks like the stuff they were doing with the Fleer brand and I am on record that I like that stuff. SO I dunno. I guess it depends on my mood in the summer.

And what the heck is Champs hockey? I've never heard of that. Is that the A&G killer that those guys at the card shop were talking about? How is a hockey product going to take out A&G?

Captain Canuck said...

send it over to Jeff at I am Joe Colletor... he's our resident law expert...

I gotta say though, at first glance, I like it.

Campana on Cards said...

The whole thing makes for another ding in the hobby industry. There are clearly no new ideas anymore, so go ahead and continue to retread the old stuff.

If this isn't a sign UD has too many products, I don't know what is.

gcrl said...

ud used the 1965 topps design in one of their vintage releases, too.

salveste said...

I am not a lawyer, but I deal a lot with these kinds of laws at work. It looks to me like Topps doesn't have a case against UD using the design unless Topps has registered trademarks on the designs (which doesn't appear to be the case). If Topps does not have "look & feel" trademarks on the card designs, then the card designs are fair game (of course, UD still can't use the Topps logo, Topps photography, or prose).

MMayes said...

I think salveste is right. First, Topps has to have a registered trademark on the designs. After what UD did on their Vintage, I would think Topps would have taken care of that.

Second, you'd have to look close to see if there were some minimal changes made to distinguish the design enough.

However, what would probably tip this in UD's favor is the extent to which they own the "O-Pee-Chee" brand. If it includes the history and designs, they're bulletproof. Remember, the OPC cards were just like the Topps cards until you got to the back. Those OPC cards in the sell sheets look for all the world to me like the 1971 OPC cards and that's all you'd have to do.

I don't practice intellectual property law, but I think UD's probably on solid footing here.

Jeremy Roe said...

I am an intellectual property lawyer, and I would say that if UD had no rights in O-Pee-Chee, Topps would have a pretty clear case (except for their previous ambivalence toward UD's use of the '65 design previously). But given that Topps provided a license to UD to use O-Pee-Chee, this type of work is probably within the scope of that license.

Also, Topps could pursue legal recourse even if does not have federal registrations in the designs. The federal trademark law also has infringement actions for non-registered materials that have functioned as a trademark or trade dress.

Jeremy Roe said...

Also, I should add that the designs themselves are probably the subject to copyright protection rather than trademark protection. The trademark would be the Topps logo, font, and MLB logos and designs, while the card layout would be the subject of copyright protection. From a cursory review of the US copyright database, Topps has registered copyrights for most of their designs.

Thomas said...

UD bought the rights to use these designs when they bought OPC. Topps didn't sell UD the OPC license, the OPC license was privately owned (and Topps sure as Hell didn't want UD to get it - for this very reason).

As long as UD re-makes sets that had an OPC version originally, Topps doesn't have a case at all. They know that, and there won't be any suits. There's not a damned thing Topps can do about this, and while I hate UD with a passion, I'm glad they're rubbing Topps' nose in it like this.

And the cards look cool.