Tuesday, February 2, 2010

What Does a Topps Blogger Think About the Happenings over at Upper Deck?

So much has been written lately about the latest things going on with that other card company. I've wanted to refrain from posting my opinions about all this, only because I thought if people saw that a TOPPS blogger was writing what he thought about the mess that UD has thrust upon itself lately, they'd think I must be enjoying it and throwing a party about a possible demise. Trust me, that is not the case (as said blogger is vacuuming confetti and tearing the streamers down from the ceiling).

The Konami lawsuit was intriguing to say the least, because not only did it somewhat validate the allegations that anyone who has read in both Card Sharks and The Card to be true regarding the business dealings of UD and it's "head man," but in court, it was confirmed that, in this instance, has actually happened. An ex-employee even testified that she witnessed the chairman shredding the fake cards in his office.

Now, before any more juicy testimony could be heard, UD settled with Konami, ending the lawsuit on the second day of the trial. And Konami is getting paid…while the amounts are not going to be announced…big bucks (in the millions) to settle. That is what almost every credible media outlet who even cared to publish this story stated. If you believe the good folks at UD, specifically its chairman however, the story is that Konami backed down because,

"the court issued several rulings in Upper Deck's favor which eliminated and gravely threatened many of Konami's monetary claims requests. These rulings sent Konami and its attorneys into retreat as Konami's case was disintegrating. These events, and these events alone, provided the framework for the case to be resolved after opening statements were presented to the jury."

Read the rest here.


I don't think I can believe a word of the statement.

UD counterfeited cards. Admitted to doing it. Even shredded evidence. And now they're saying that Konami's monetary claims were threatened??? There were rulings in UD's favor??? Somehow I think if you switched Konami and Upper Deck in these sentences, you'd get the truth as to what really happened. Maybe Konami isn't going to get all the money they sued for, but it still has to be a significant amount of change. According to the New York Post:

"...Upper Deck was forced to shell out millions of dollars in damages to Konami. A judge had called internal documents at Upper Deck "damning," saying they "detail blatant, improper, perhaps criminal, conduct by individuals at the top."

With the Konami situation done, now UD can focus on something more important…getting sued by MLB Properties!!!

As we all know (and have been truthfully celebrating here), Topps is the exclusive licensee of MLB for producing baseball cards. Meaning that Topps can produce pictures of MLB players wearing MLB uniforms, using designs with MLB logos, trademarks, etc, and even use a MLB designed rookie card logo. Heck, Topps can even use the words Chicago and Cubs in a sentence, even putting the two words together.

UD doesn't have any of these rights. They are, however, licensed by the MLB Players Association. Meaning they can take pictures of all the MLB players they want. However, without the MLB Properties license, they can't use logos, trademarks, etc, or even that nifty RC logo. They can use the name of the city each player plays for, but not the team name. So, while not a monopoly (it would only be one if Topps, and nobody else, made baseball cards), Upper Deck can still make baseball cards. They just have to follow the guidelines of which they have been handed.

Based on what has been seen with their final "2009" releases though, I think they've decided to just throw everything out the window and just proceed as if everything is rainbows and unicorns. Yes, their cards say that they are not licensed by MLB. Yes, there is no team designation, only a city, and yes, in many cases, the team logos have been airbrushed or obscured from the player's uniform. But they missed plenty, (hat logos, sleeve patches, team names on uniforms), and now MLB is suing UD.

And in a show of defiance (or what some would call idiocy), UD is threatening to countersue, saying in a letter to its distributors

"Although MLBP contends in its letter that Upper Deck may not lawfully use images of professional baseball players in uniform, there is absolutely no law to support this position," said Upper Deck in its letter, which also tells distributors that it has 'reached out to MLBP' and offered to meet next week on the subject…If we cannot do so, then the issue will be resolved in court."


What could there possibly be left to discuss? They don't have the license; they aren't supposed to be doing what they've done. Unless these cards are still from the calendar year 2009, in which they still had all the licenses and the rights to everything, then this wouldn't be an issue. But UD already went ahead and treated this product as if it's for 2010. No wonder MLB Properties is ticked.

This could be why UD didn't show any previews of the card designs. If you remember last year, UD put out previews that were immediately panned and lawsuits were filed for trademark infringement (that nasty OPC debacle). But keeping this under wraps for so long, even UD must have known it would set off a firestorm of controversy and negativity.

I don't know how much money they have left for lawsuits (let alone in their coffers for other things like production, and other regular business expenses), but I know that there is going to be a long fight in the courts regarding this matter. The betting man would say that the group with the most money is going to win this, and that group isn't going to be Upper Deck. All I know is that the other leagues that do business with UD will be taking a look at what transpires here (meaning the NFL, NHL, and possibly the NBA). This may affect decisions in the future as to whom to do business and what other companies would be best for them to promote their brand. Being as defiant as they have been though, not only here, but in the Konami case, isn't going to leave the other sports leagues a good impression of UD.

Make no mistake about this…this is not going to mark the death knell for UD. But it definitely puts them on the right track for life support


JayBee Anama


Grand Cards said...

Nice summary JayBee. While I'm not as happy about the lost UD license as you are (I really enjoyed many of their releases over time, and recently--especially as a team and player collector), I'm disgusted by them as a company. I thought you might like to read my take on their brazen attitude and apparently specious legal reasoning surrounding all of this.

Bottom line is that this appears to be a pretty clear-cut case of trademark infringement and I don't know how they're going to be able to successfully argue otherwise.

Joe S. said...

I liked Upper Deck's high end stuff (Sweet Spot is my favorite set of any price level), but I was never really a fan of their flagship stuff. So I guess I don't really care about all this. They'll just have to go back to Sweet Spot Classic!

Bo said...

I think the question is whether the logos in the photographs can in fact be part of a licensing agreement or whether they fall under fair use. I have no idea what the legal merits of that argument are, but MLB recently lost a similar lawsuit regarding fantasy baseball statistics so UDs case is certainly not ridiculous.