Wednesday, February 3, 2010

Does Upper Deck Actually Have a Shot Against the MLB lawsuit?

To tell you the truth, im not sure any more. Here are the facts, followed by my own questions and comments.

Fact: MLB's license to use logos and team names lies only with Topps.

Question: Because UD's cards feature no printed logos or team names on the cards themselves, does this leave them exempt? Im going to say that in my opinion, they shouldnt have risked it by including what they did in the photos, or at least tried to blur it a little. On the other hand, no where on the card does it use the team names or logos.

Fact: MLB is contending that collectors will mistake licensed cards for unlicensed ones

Question: Is UD on the right side of the law because they prominently display a lack of license in 3 spots? I side with UD on this one, as there should not be any confusion in the hobby. Unless the people have been living under a rock, are blind, and cant hear the little birds on their own shoulder, they know UD is out of the baseball logo game.

Fact: Upper Deck will have a market with or without logos

Question: Does MLB really expect it to get any better if the players were airbrushed? I think Ultimate would have been Ultimate with or without blurred or airbrushed pictures. I thought the point of a cease and desist was to stop someone before damage is done. In my opinion there is little damage done by a lack of airbrushed photos. Its not like more collectors would avoid a product with cleverly done logo blurring.

In the end, im not really sure where this lawsuit will go, and how much MLB will be able to prove. According to a few other bloggers, Upper Deck is going be using message boards and blogs to show a lack of misunderstanding about their license status, and they may actually have a point. Remember, this is ONLY about the photos, not about the cards. However, with MLB saying that the uniforms and hats are part of their likeness, it may be hard for a judge to overlook that.

The main question really is why Upper Deck would even risk it in the first place.

1 comment:

  1. You bring up some excellent questions. You might be interested to read my take on the issue. I will say this in response to your questions:

    1. From what I've seen, photographs used for commercial purposes have come under scrutiny when they use trademarked logos as part of the main content.

    2. This seems to be the crux of a trademark infringement case--confusion with the licensed alternative. Here, I think UD has done a good job by explicitly saying on the packaging that they are not licensed by MLB. It is also well known in the blog/board world that UD lost their license. HOWEVER, I think they're ignoring two big factors here: The first is that a great deal of card sales are done on the secondary market after being opened by case breakers and the like. When these cards are taken individually, there is nothing to indicate that they aren't licensed. In fact, if I were to see one of the Upper Deck cards in question in isolation I could easily confuse it with a licensed card. The logos in the pictures affirm this.

    Furthermore, as Beardy pointed out in his blog, the card distributors have explicitly advertised these cards as having the logos on them. I think that's bad news for UD here. Given the prevalence of the secondary market as the primary point of sale for most consumers and the fact that the cards, taken in isolation, look like licensed cards, spells trouble for UD.

    3. You're dead on. With the quality of things like Ultimate that UD is putting out, they don't even need the logos. The high end is where they shine, and it's where logos are least important. With things like 2010 Upper Deck and other low/mid end releases it's more of a big deal though and I think collectors would avoid them.

    Anyway, great job in this post--I'm really curious to see where this all goes.