Topps Amended Complaint

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

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XTHE TOPPS COMPANY, INC.,

Plaintiff,- against -

THE UPPER DECK COMPANY, INC.,

Defendant.

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X

09 Civ. 3780 (RMB)ECF case

SECOND

AMENDED COMPLAINT

JURY TRIAL DEMANDED

Plaintiff, The Topps Company, Inc., by its attorneys, Ingram Yuzek Gainen Carroll &Bertolotti, LLP, for its second amended complaint against defendant, The Upper Deck Company,Inc., alleges as follows:

Jurisdiction

1.

This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1338, and 15U.S.C. § 1121 because this case arises under 17 U.S.C. § 101

et seq.

and 15 U.S.C. 1051

et seq.

This Court has supplemental jurisdiction over the related state law claims under 28 U.S.C.

§§ 1367 and 1338.

2.

This Court has personal jurisdiction over Upper Deck because Upper Deckconducts business in this district, or committed a tort in this district.

The Parties

3.

Topps is a Delaware corporation with its principal place of business at 1Whitehall Street, New York, New York 10004.

4.

Upon information and belief, Upper Deck is a Nevada corporation with its

principal place of business at 5909 Sea Otter Place, Carlsbad, California 92010. Upper Deck

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Case 1:09-cv-03780-RMB Document 31 Filed 08/24/2009 Page 1 of 38

conducts business

in New York and throughout the country through

stores

,

distributors, and on

its

www.operdeck.com website.

Factual Background

5.

Topps is a leading marketer, manufacturer, and distributor of sports and

entertainment products, including trading cards, stickers, confectionery products, and related items.

6.

Since 1952, Topps has manufactured and sold trading cards bearing a baseball

player's name, signature, likeness,

team name

, position, and statistics. Topps's baseball cards,

along with its other sports and entertainment trading card products, have become a well-established part of American culture.

Topps'

s Trademarks

7.

Continuously since in or about 1938, Topps has used the name and mark TOPPSto identify its products. Topps has used the name and mark TOPPS, and variants of it,extensively in the United States and throughout the world on its products, including tradingcards, packaging for its products, and in advertising and promoting its products in trade andconsumer magazines, television, and on the Internet.

8.

Topps registered its name and mark TOPPS in the United States Patent andTrademark Office, and owns numerous registrations incorporating the name and mark TOPPSincluding, without limitation, the following:

Mark

Registration No.Issue Date

TOPPS

835,967Sept. 26, 1967

TOPPS(stylized

)

1,809,166December 7, 1993

Goods

Trading cards and stickersTrading cards, comic books,magazines and books onsports and entertainment

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2

Case 1:09-cv-03780-RMB Document 31 Filed 08/24/2009 Page 2 of 38

These registrations are currently valid

, subsisting

and in full force, registered on the PrincipalTrademark Register of the USPTO, and are incontestable in accordance with 15 U.S.C. § 1065.Copies of the registration certificates for the above marks are annexed as Exhibit A.

9.

Topps has used the name and mark TOPPS extensively and continually

in sales,

advertising, and promotion in the United States for over 70 years, and has been using the nameand mark TOPPS on sports trading cards for over 50 years. Topps has expended substantialtime, effort and money to ensure that the purchasing public associates its marks exclusively withTopps and its products.

10.

As a result of its efforts, the TOPPS name and mark has acquired secondarymeaning, substantial goodwill, has become famous, and uniquely identifies Topps's products.The TOPPS name and mark

is an asset

of incalculable value as symbols of Topps's high qualityentertainment and other products, including, without limitation, sports trading cards.

Topps's Copyrights

11.

Topps created, developed, and published for sale baseball cards that wereregistered with the United States Register of Copyrights as follows:

Card NameYearU.S. Copyright No.Reg. Date

Topps 1963 Baseball

1963

Appears inJanuary 29, 1986TX0001730597Topps 1971 Baseball

1971

Appears inJanuary 29, 1986TX0001730597Topps 1972 Baseball

1972