Upper Deck shows its hand for 2010 with two new 2009 baseball card sets

Upper Deck shows its hand for 2010 with two new 2009 baseball card sets by Chris Olds

January 28, 2010, 1:08 pm
Filed under: Donruss, Hall of Fame, MLB, MLBP vs. Upper Deck, Topps, Upper Deck | Tags: baseball, baseball cards, Major League Baseball Players Association, Major League Baseball Properties, MLB, trademark use, Upper Deck

Update: See MLB Properties’ statement by clicking here.

By CHRIS OLDS | Beckett Baseball Editor |  COMMENTARY

There has been plenty of speculation (though some might say it’s obvious) about just what Upper Deck will do with its baseball cards for 2010 as its products will only be licensed by the Major League Baseball Players Association and not also by MLB Properties.

A pair of 2009 sets — Ultimate Collection and Signature Stars — arrived this week with statements on their boxes and the cards themselves that the products are “not authorized by Major League Baseball or its member teams” and with cards that, while they do not use the team logos as part of the cards’ designs, do include team logos on the players’ uniforms in the photographs used on the cards.

The Carlsbad, Calif.-based company had not released any preview images for these two products — nor for any of its four announced 2010 sets — prompting and reinforcing the speculation that it would not be digitally editing out team logos or producing cards without game-action photography.

While it’s unclear whether the photo usage would be completely allowable given Upper Deck’s agreement with the MLBPA, Evan Kaplan, the MLBPA Category Director/Trading Cards and Collectibles did say this on Thursday:

“Upper Deck is a current MLBPA licensee which provides them the right to feature active Major League baseball players on their baseball cards.”

Whether that will be challenged legally by Major League Baseball Properties remains to be seen — one thing that’s been historically a given is that MLB and the MLB Players Association don’t always see eye to eye. One thing is clear, though — that these 2009 cards indicate the direction that Upper Deck will be taking in its 2010 releases. (They’ve been released after its deal with MLB Properties has expired — Topps became the sole MLBP-licensed trading card manufacturer on Jan. 1.)

A message to MLB Properties regarding the cards was returned but MLBP had no comment at this time. Upper Deck officials also declined to comment on the issue.

However, if there is not any “coverage” so to speak with Upper Deck’s deal with the MLBPA then one has to look no further than the Donruss-MLB Properties lawsuit last year, which was settled in a U.S. District Court. MLB sued Donruss alleging that its products were in violation of MLB’s trademark rights as well as the terms of its expired license among other claims.

In a handful of 2008 baseball sets, Donruss  (a former MLB licensee whose deal expired in 2005) digitally obscured some logos on cards, digitally replaced others and did not alter some logos at all on other cards.

According to that complaint, MLBP argued that the cards “depict certain Major League Baseball and Minor League Baseball players in their team’s proprietary uniforms. The trademarks featured on the uniforms (as well as the overall trade dress of the uniforms) remain visible and identifiable to consumers, despite Donruss’ calculated attempts on some cards to have such marks modified or partially obscured.”

MLB argued that the Donruss products would cause confusion in the marketplace, and that they were leading consumers to falsely believe that the cards were “associated with, authorized, endorsed or sponsored by” MLB or other corporate entities.

MLB Properties claimed in that case that its intellectual property that it licenses and enforces are its “trademarks, service marks and trade name and the trademark names owned and used by and under which each of the MLB Clubs competes, along with a variety of other names, trademarks, service marks, logos, designs and trade dresses owned and used by the MLB Clubs … including, without limitation, the unique and inherently distinctive color combinations, striping, uniform designs and/or positioning of the Club names, logos and other elements (such as geographic designations) used on the MLB Clubs’ uniforms (sometimes referred to herein separately as the ‘MLB Uniform Trade Dress).”

So, to restate that for clarity, MLB argued that the use of its logos, names, team colors and even its uniform designs (trade dress) are all subject to approval. Furthermore, using team color combinations in coordination with geographic locations as part of the card designs was not allowed per the terms of Donruss’ previous agreement.

How does all of this compare to Upper Deck’s cards, which were released after its deal with MLB Properties expired but are authorized by the MLB Players Association?

— MLB logos are used on photographs of the players with no attempt to digitally remove them, though some sets’ photos do appear to crop off hats and a majority of the logos that appear on them.

— MLB logos are not used as part of the card designs.

— MLB team names are not used as part of the card designs. (An Atlanta Braves player is only identified as playing for “Atlanta.”)

— There is a statement on each box and each card that the product is not authorized by MLB.

— Specific team colors (purple and black, for example with the Colorado Rockies) are not consistently used as part of the cards’ color schemes.

MLB’s claims against Donruss noted that in that company’s case, its most recent licensing agreement noted the terms of a license as well as a window under which the company could not produce products. It’s unclear what the details of Upper Deck’s deal with MLB Properties entails — and how much that may differ considering its remaining deal with the MLBPA.

In the Donruss case, MLB claimed that “after the License Period [Donruss would] make no use of any such MLB marks other than as provided in this agreement, without the prior written consent of licensor or the appropriate individual MLB entity … licensee further acknowledges that for purposes of this Paragraph 15, ‘use’ includes, but is not limited to trademark, fair, incidental, descriptive or functional uses.”

What do collectors and dealers think about all this? What do they think about the products? That’s the next step in this discussion about the hobby. Be sure to let us know right here …

Chris Olds is the editor of Beckett Baseball and Beckett Graded Card Investor. Have a comment, question or idea? Send an e-mail to him at colds@beckett.com.

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