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MLB beats the hell out of Upper Deck

Mar 4, 2010, 9:28 AM EDT

Major League Baseball sued the Upper Deck baseball card company about a month ago for releasing baseball cards with team logos and stuff without having a license to do so. The case settled yesterday.  All that’s missing from the settlement terms is a provision which requires Upper Deck’s CEO to be Bud Selig’s butler for the next ten years:

  • Upper Deck pays MLB more than $2.4
    million it owed on back debts.  The suit was for $2.4 million. If you’re settling for the requested amount a month after the complaint was filed you have been pwned.
  • Upper Deck pays MLB “a substantial
    sum of monies” for the unlicensed cards it sold in 2010.  The amount is confidential, but based on the other terms, it was probably a lot.
  • Upper Deck agrees not to make any new sets of cards using “MLB logos, uniforms, trade dress, or Club color combinations.”  Color combinations? I’ve got very little intellectual property law experience, but if someone has the rights to use his photo and everything, can they really get sued for putting out a card of, say, Nick Swisher with a simple navy and white border?  If so, is MLB going to go after every blog, magazine, sports bar, advertisement and everything else that uses a team’s colors? Seems a bit much.
  • Upper Deck agrees it will not airbrush, alter or block MLB marks in future products.  Which is really sad, because I kinda miss cards like this one. And this one, on which people always miss the airbrushing for some strange reason. The last place were we get that kind of craftsmanship is when ESPN or Yahoo! change the players’ hats and jerseys in their little player-page headshots after they’re traded.
  • Upper Deck must receive approval from MLB for the use of baseball
    jerseys, pants, jackets, caps, helmets or catcher’s equipment in future
    products featuring players. This too is harsh. So much so that I get the feeling MLB just put this one in the demand letter to see if Upper Deck would agree to it. They’re probably laughing now. If I was Upper Deck, however, I’d use this term to my advantage. Next year: baseball’s first all-nude card set.  Now that Antonio Alfonseca is retired it’s probably safe enough to dip a toe into those waters.

Oh, and one last thing.  The statement released by MLB:

“Our settlement in the case against Upper Deck is a clear and decisive
victory for Major League Baseball. Upper Deck will be unable to release baseball trading cards that
incorporate Major League Baseball’s intellectual property in the
future.  The real winners today are the millions of fans who collect
baseball cards.  They will be able to clearly identify official Major
League Baseball trading cards without any confusion.”

Last rule of a settlement: if you can’t get the other guy to agree to some sort of neutral joint statement that doesn’t have someone declaring victory, it is less a settlement than it is a total reaming.  Come to think of it, Upper Deck should have just offered the butler thing and taken their chances with a jury if it didn’t work out.

  1. Chipmaker - Mar 4, 2010 at 9:39 AM

    No tears here. Upper Deck has been needing this for years. Now if only MLB would re-issue a license to Donruss… there’s several reasons why it chose to go back to Topps as sole licensee (none of them very good from the collector’s point of view, and frankly Topps is DECADES overdue for getting nuked), but this is how it’s going to be for a while. I largely gave up buying new cards a few years back and don’t really miss it, but it’s amusing to hear UD had to eat it big time.

  2. Spice - Mar 4, 2010 at 9:39 AM

    Don’t ya just love when competition is reduced and we are told it is in the best interest of the fans?
    On a side note: Don’t ya just LOVE Oscar Gamble’s ‘Fro?

  3. Jonny5 - Mar 4, 2010 at 9:59 AM

    I’m not a fan of this. I feel baseball cards should be able to accurately portray players and the teams they’re on, without paying a ransom to mlb. What this does is, kill Upper deck, and remove the competition from the picture which will in due time raise the card prices to cover the bribe money topps paid to the mlb.. I don’t see how this is good in any way.

  4. aweb - Mar 4, 2010 at 10:09 AM

    They will be able to clearly identify official Major League Baseball trading cards without any confusion
    I could be alone on this, but I never cared even a little bit whether trading cards were “official”. How they look matters, how much they cost matters, the information on them matters. An official MLB logo? That doesn’t matter. And for resale value collectors, I can’t imagine it matters either.
    Trading cards pretty much killed themselves in the early-mid 1990s anyway (like comic books). Overpriced, full of “special” cards which practically outnumber the regular player/position/team cards. Have the gotten any better lately, or are they hyper-specialized to the collectors at this point, rather than the regular young fans?

  5. Rays fan - Mar 4, 2010 at 11:09 AM

    In some ways it’s gotten way worse, with the new “big” thing being one-of-kind cards. Real collectors hate these because now it’s truly impossible to fill out a set. It’s purely a ploy to create artificial value due to rarity for the speculators/idiots who think baseball cards are an investment and not simply a hobby like collecting stamps or coins or whatever. I have every single Topps card from the 1970’s and none from 2010.

  6. matt - Mar 4, 2010 at 11:12 AM

    There was a case a few years ago that said there could be a finding of trademark infringement on the basis of “color schemes along with other indicia.” Basically, the color scheme can lead to a likelihood of confusion. Showing Nick Swisher in a baseball uniform on a card with a white and navy border might lead some to conclude the card is affiliated with MLB (because thats the type of thing most 9 years olds think about). And, lets face it, Upper Deck would probably use said border to give the impression that they are affiliated with the league.
    This came up again a year or two ago when Budweiser sold “fan cans” with the color schemes of local colleges. Bud pulled the cans before it got to that point.

  7. Dan in Katonah - Mar 4, 2010 at 11:16 AM

    1. Nice use of
    2. Upper Deck’s outside counsel had better start looking for a new client.
    3. What brand confusion did MLB think was going to happen? Were we going to confuse Yankees with the Long Island Ducks or one of the many other non-MLB league teams that operate out there? This is not like the USFL or the old ABA. Not with the legal monopoly MLB has. And now the monopoly exists by extension to the card industry. I, too, am not an IP lawyer, but this seems like a bad thing.
    4. Love Gamble’s Afro-puffs.

  8. Old Gator - Mar 4, 2010 at 12:01 PM

    Upper Deck’s outside counsel had better start looking for a new client.
    Did you notice that Craig quit his law job just about the time that this story blew open? Why do I have a sneaking suspicion that their outside counsel knew he had blown it? And why do I have a sneaking suspicion that their outside counsel has already found work? And why do I have a sneaking suspicion that Craig is trying too hard to make it look good for MLB?
    And why are you staring at me like a fucking Meerkat????

  9. Bill Rogers - Mar 6, 2010 at 5:23 PM

    Frankly, I think the cards should be like news reports. Wide open for all. Of course that would not line MLB’s pockets. Come to think of it, maybe they should start charging newspapers and websites for reporting on MLB at all. No pix or accounts of the games at all without a fee. The money will just roll in.

  10. achiappanza - Mar 7, 2010 at 12:35 AM

    >> Have the gotten any better lately, or are they hyper-specialized to the collectors at this point, rather than the regular young fans?
    I think cards of this century are beautifully done, much better quality than the 90’s explosion, and worlds apart better than the traditional vintage ones. Printing technology has gotten really good, and you see the results.
    I think it’s great for regular young fans, who can easily get a 500 card box of great-looking cards of only their team for less than twenty bucks. They’re only in trouble if they get suckered into the collector’s game of really wanting that PSA 10 blue refractor autographed version of a card.

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