Can Upper Deck survive Topps’ lawsuit?

While I am not anything close to an “insider” when it comes to The Hobby, one has to wonder just how much the Upper Deck Company can handle during these already uncertain times.

Not only did they lose their most valuable asset (Yu-Gi-Oh), but in the last few months their new releases have not exactly been a huge success (Spectrum, A Piece of History, SPx).

When I first caught glimpse of the O-Pee-Chee inserts in 2009 Upper Deck I knew some collectors would not be pleased. What I did not know at the time is that Upper Deck owns the rights to O-Pee-Chee and is entitled to produce what they want. Isn’t that the whole point of owning a brand?

My personal opinion is that these cards look fantastic and while the tactic involved is a little underhanded, one would think it is perfectly legal. Still, using the O-Pee-Chee brand as an entire upcoming release might have been the straw that broke the camel’s back for Topps.

Seriously though, is this any worse than Upper Deck Vintage?


Upper Deck Scores Legal Victory Against Topps

Sports Card Company Firmly Denies Topps’ Allegations of Any Wrong-Doing

The Upper Deck Company won a legal victory today when a New York judge denied a Temporary Restraining Order sought by Topps to prevent the release of 2009 Upper Deck Series Two and 2009 O-Pee-Chee baseball card products.

Yesterday, the Topps Company filed a lawsuit against Upper Deck claiming copyright infringement. Upper Deck strongly denies the allegations and did, in fact, do its due diligence when researching, clearing and securing approvals to use the card designs. Upper Deck received necessary legal approvals and proper protocol was followed to ensure there were no infringements.

“Based on the tactics utilized by Topps thus far, Upper Deck questions the validity of this claim,” said Bernd Becker, Upper Deck’s vice president of Trading Cards. “We strongly disagree with the allegations. In today’s challenging economic environment, it seems petty and counterproductive to file such a frivolous suit.”

12 thoughts on “Can Upper Deck survive Topps’ lawsuit?

  1. mfw13

    Would be nice to find a lawyer to comment on this.

    My reading is that Topps’ suit is meritless because Upper Deck has rights to the deisgns through their purchase of OPC a few years ago, but this is by no means certain.

    It may be that Topps knows that that they are unlikely to win the lawsuit but filed anyway in order to force Upper Deck to use valuable cash defending it and/or to muddy their name during the decision-making process for future baseball licenses.

    Since Topps is owned by a private equity firm, they likely are in a better financial position right now than Upper Deck, and you can be sure that the fact that UD is starting to use old OPC designs, although legal in my opinion, will not reflect well on their creative department in the eyes of the MLBPA.

  2. Bryan

    “It may be that Topps knows that that they are unlikely to win the lawsuit but filed anyway in order to force Upper Deck to use valuable cash defending it and/or to muddy their name during the decision-making process for future baseball licenses. ”

    I think that’s Topps strategy

  3. Mike Angotti


    Does this mean you wont be getting any more boxes through your sponsorship with Upper Deck?

  4. JBob

    I would like someone to comment more of OPC’s rights to use Topps design, is that a fact that OPC can use Topps art work? Then ergo can U.D. then use that to distribute cards?

  5. mfw13

    A lot depends on what exactly UD purchased when they “bought” OPC, as well as the nature of OPC’s original relationship with Topps.

    If, for example, OPC simply was licensed by Topps to use their designs in Canada each year, then those rights probably do not transfer to the present day and UD is in a whole heap of trouble.

    However, if OPC co-owned the designs with Topps, then UD is probably in the clear.

    Likewise, more detail needs to be known about what exactly UD pruchased when they “bought” OPC. Buying the rights to use the name/brand is very different legally from buying the company and all its intellectual property.

    So it all really depends on the legal arrangement between the original OPC and Topps regarding the designs as well as what precisely UD purchased when they acquired OPC.

    In all honesty, given the way UD is run, it wouldn’t suprise me in the least if they were trying to pull a fast one and got caught with their hand in the cookie jar.

    Bottom line, though, is that having this suit hanging over their head is not going to be a positive thing in the eyes of the MLPBA when it comes to awarding next year’s licenses.

  6. From a lawyer’s perspective in order to give any type of commentary I would need to see the contracts between Topps and opc and the contract between ud and opc.

    I can’t imagine ud’s legal team bungling this that badly, of course I deal with bad lawyers all the time so maybe I can.

  7. Mitch Kumpstein

    Those OPC cards of the 1970s were not designed by OPC. They were distributed under a licensing/distribution agreement with Topps. Topps did the design work, then allowed OPC to sell/distribute the cards into Canada. I’m guessing UD bought the rights to the OPC name and any cards they designed, but the cards of the 1970s were not designed by OPC.

  8. Fuji

    Whether or not UD has the right to use the OPC/Topps designs from the 70’s & 80’s, I think it’s cheesy. Upperdeck’s creativity department must be really hard up for ideas.

  9. Joe

    This lawsuit has no basis.
    As you can see UD uses dark black border as opposed to faded black. Team names are in white and not red. The dot separating the name and position are different colors. UD has clear photography and no airbrushing where Topps is littered with it. Lastly – Albert Pujols was not included in the 1971 set and Pete Rose will not be included in the 2009 set. So, as you can see Topps has filed a frivolous lawsuit and their punishment should be to supply me with two cases of each new product until I am satisfied.

  10. gogosox60

    The UD Vintage 1971 set of a few years ago was a nice homage to that old Topps set, but it never really looked like the actual 1971 design. Whereas this looks like a dead on copy of the 71 set. We have always seen people recreate old Topps cards for fun for articles or what ever, but recreating them to sell in packs violates Topps rights to create the 1971 Heritage set in 2020……..?!?

  11. Mike, to be completely honest… I don’t exactly know what my relationship with Upper Deck is at the moment but I feel the need to report the news and tell it like it is with their latest releases.

    I owe it to collectors more than anything else. If U.D. feels that my coverage is not fair, so be it. After all, this is Wax Heaven, not Beckett.

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