Leaf Files Counterclaim Against Topps

One month after being served with a lawsuit over its marketing materials, Leaf Trading Cards has answered claims by the Topps Company with a counterclaim.

In mid-August, Topps sued Leaf in federal court, saying its smaller rival didn’t have the right to use images of Topps cards or the players it has under contract.  A sell sheet for Leaf’s 2011 Best of Baseball includes images of previously issued Topps cards that Leaf has placed inside boxes of the product.

In court papers filed last Thursday, Leaf calls Topps’ actions “unlawful, unfair, wrongful, malicious and fraudulent in that they constitute misuse of federal and state trademark law”.

The boxes include one Leaf-created cut signature card along with a previously issued PSA or BGS-graded card from various manufacturers.  Some of the best aBest-of-Baseball-2011-Sell-Sheetvailable cards include a 1952 Topps Mickey Mantle, a 1958 Mantle, 1972 Carlton Fisk rookie, 2001 Albert Pujols rookie  and more recent autographed Topps cards of star prospect Bryce Harper.

Leaf says the scanned images it used in the sell sheet constitute protected fair use.  In court papers obtained by Sports Collectors Daily, Leaf cites the thousands of eBay listings that utilize pictures of Topps cards in claiming Topps is attempting to “exert its monopoly” in the baseball card market rather than enforce any copyrights.

Topps has “created a present and actual controversy”, according to Leaf attorneys.  They say the sell sheet was the only place that the Topps’ name or images appear and deny Topps’ claims that the use of the images in the sell sheet would result in marketplace confusion over who was issuing the product.

Leaf maintains the Best of Baseball boxes, which sold for $185, are clearly labeled as its own product with no mention of Topps or images of its cards.  Leaf says it sold out of 1,030 cases.