Last Tuesday, I received an interesting message from the receptionist, “Brian Gray, the owner of Leaf, would like to talk to you."
Really? Cool. Any day the head of a trading card company wants to chat is bound to be a good day.
Too bad he wanted to chew me out.
“Gloomy forecast for Leaf?" he asked incredulously as he recited part of the title of my last article on the Topps v. Leaf case. I had reported that Leaf's online sell sheet and the product at issue in that case had been removed from Leaf's website and theorized about what it could mean (although I concluded any accurate predictions couldn't be made until the next court filing).
Mr. Gray did not read it that way because he explained that the product and sell sheet were down solely due to maintenance reasons and they would be put back up immediately, which they were. He also emphasized, a few times, that Leaf was not giving up and that the company was going to fight.
Being an attorney, I had to make a friendly argument of my own. I pointed out, “Wait, if you read my other two articles (here and here) on this case you should have seen that I think Leaf is going to win."
Things cooled down from there, and we had a friendly conversation. I don't think I made his Christmas card list, but I wasn't public enemy number one either.
After we hung up, what stuck with me was his repeated assertions that Leaf was going to fight. The way he said it made me realize Leaf's answer to Topps' complaint was probably going to be good.
And it was.
Leaf has countersued. It's war!
The most striking part of Leaf's response, which was filed on September 15, is its claim of unfair competition against Topps. Paragraph 73 of Leaf's filing gives you a good idea of the company's tone:
73. Topps' actions are unlawful, unfair, wrongful, malicious, and fraudulent, in that they constitute misuses of federal and state trademark law, the making of frivolous trademark infringement claims, tortuous interference with prospective economic advantage, trademark misuse, malicious prosecution, misrepresentation, and other forms of unfair competition.
Great legalese: wrongful, unfair, malicious, fraudulent, frivolous! I love it when legal battles escalate.
Leaf also claims that Topps, with its suit, is trying to exert a “monopoly in the sports trading card industry," and not really trying to “enforce their trademarks, copyrights, or any other rights." In other words, Topps just wants to bully Leaf.
As pointed out in my first two articles, I think Leaf has good defenses. I won't go as far and say Topps' claims are frivolous, but I will say it is my opinion that Leaf's defenses will likely prevail. It's good to see that Leaf agrees with my assessment.
In fact, some of Leaf's defenses are the same I raised in my first article. For example, I pointed out the "fair use defense" could be used against Topps' infringement arguments by pointing out that millions of Topps cards are sold on eBay (with pictures of the cards), and Topps did nothing about it.
Leaf put this same defense forward in Paragraphs 15 and 17:
15. Topps complains that Leaf included in its advertising 11 scanned images of Topps cards that Leaf bought in the secondary market. However, sellers and resellers of sports trading cards routinely advertise their products by displaying the original manufacturer's ame and an image of the card. Virtually every eBay listing for a Topps trading card on eBay includes one or more of the Topps' trade names (e.g., "Bowman," "Bowman Chrome," and "Topps Chrome") AND an image of the card for sale (whether a scanned image of the actual card or a stock image of the card).
17. On any given day, there are likely more than one million (1,000,000) Topps products listed for sale/auction on eBay. For example, September 14, 2011 searches of eBay listings found the following number of items listed for sale/auction (searching in the "title" and "descriptions" of products for sale/auction):
To be fair, I might have missed the forecast in my last article (the one Mr. Gray called me to “discuss"), but I nailed it in the first and second articles. As I wrote, Leaf has some pretty good defenses, and it is using them to draw the battle lines.
Leaf also requests the court to rule that Topps' asserted copyrights for the 1952 and 1958 Mickey Mantle cards, the 1972 Red Sox Rookies card and the 1980 Rickey Henderson card are invalid (i.e., it either does not own copyrights on these cards or the copyrights are dead). What's interesting here is if Leaf succeeds on this claim, there's a chance these could fall into the public domain for anyone to use.
From an industry perspective, if this suit continues, it could clear up a gray area in the market. Leaf has asked the court to rule that the use of scanned images of trading cards or autographs purchased on the open market for marketing does not violate another's intellectual property. If the court rules on these issues, this will likely give clarity on both “buy back" and “cut card" issues, not just for Topps and Leaf, but for all the industry players.
It'll take me a couple of days to digest the entire filing (it has 19 exhibits, for crying out loud), but Leaf's filing was a powerful maneuver. Not only does Leaf deny that Topps has a case, it has escalated the battle. This provides a strong indication that Leaf adamantly believes it has the stronger case, and will fight to prove it.
Which is the same impression I had after speaking with Mr. Gray last week.
After we hung up, I strolled into the attorney's office next to mine and casually mentioned the phone call. “Hey, the owner of Leaf read my article," I told her. But being an attorney, she couldn't resist being logical in her response, “Actually, if all he recited was the title of your article—and really, only part of the title of your article—that's probably all he read."
Way to kill my buzz.
Oh well, maybe this week I can expect a call from someone at Topps. One can always hope.
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