Union Pacific Sues Athearn & Lionel
Arailfan
the big names too. Here's a link to UP's press release:
http://www.uprr.com/newsinfo/modelrail.shtml
Here's the suing part:
"Union Pacific defends trademarks
Union Pacific Railroad Company has filed a complaint in U.S. District
Court for the District of Nebraska naming as defendants Lionel, L.L.C.
and Athearn, Inc. The defendants are model railroad manufacturers who
have refused to enter into licensing agreements for their commercial
use of Union Pacific trademarks. The complaint alleges claims of
infringement of federally registered trademarks, trademark dilution
under § 43(c) of the Lanham Act, Unfair Competition under § 43(a) of
the Lanham Act, common law trademark infringement, unfair competition,
and violation of the Nebraska Uniform Deceptive Trade Practices Act.
Union Pacific believes it is imperative that it defends its trademarks
against unauthorized use by Lionel and Athearn. Both companies
repeatedly have rejected Union Pacific's lawful licensing requests.
Not only have Lionel and Athearn failed to license use of Union
Pacific's historic trademarks, they have violated trademark protection
laws by producing new models featuring Union Pacific's latest
"Building America" branding and advertising campaign.
Union Pacific notes that Lionel has a very active licensing program
that protects its own trademark. It is difficult to understand why
Lionel and Athearn believe they are above the law, while more than 60
other manufacturers, including many model railroad manufacturers, have
licensed their Union Pacific products in accordance with the law."
I like the part about Lionel protecting their trademark - it only
seems to work one way I guess!
Bob Boudreau
Canada
Edward A. Oates
program should support Athearn and Lionel in the only ways we can: buy their
products; if you know any news reporter types, see if this attempt to impose
a tax on model railroaders can be reported in way embarrassing to UP.
Clearly, we have no way to directly influence UP: they simply don't care and
likely none of us control enough shipping business to matter. In my opinion,
UP is using their size and [compared to Athearn and Lionel] unlimited legal
budget to extort a tax from all of us for trademarks used freely for many
years. The Lionel comparison is a false analogy: Lionel NEVER allowed their
trademarks and symbols to be used by anybody, not nowhere, not no how. UP
allowed their marks, and the fallen flag marks to be used everywhere without
restriction, and even paid for their use when promoting customer (that is,
rail travelers) good will was important to them.
This would be interesting if not so irritating.
Ed
in article 3db4cb3.04060...@posting.google.com, Arailfan at
arai...@post.com wrote on 6/2/04 10:13 AM:
--
Ed Oates
http://homepage.mac.com/edoates
DCC wiring information is at http://www.wiringfordcc.com
To help eliminate spam and scams, send it to FTC gov <u...@ftc.gov>
(hee hee hee: Happy spam bot message)
Jon Miller
work one way I guess!<
business and the last time I hear Lionel didn't make any full scale engines
and is not in the freight hauling business!
UP _could_ lose a big one here! If the courts decide the trademark
pertains to the product. If one does a search on trademark most/all of the
suits pertain to same/similar products.
Mark Mathu
news:10bs4ik...@corp.supernews.com...
> UP _could_ lose a big one here! If the courts decide the trademark
> pertains to the product. If one does a search on trademark most/all of the
> suits pertain to same/similar products.
I think the law is on the side of Union Pacific. With recent new ownership
of Athearn, they may rethink their stance on this issues. As for Lionel...
who knows?
Ccutler0
have some respect for them, even though I'm not pleased with their policies on
distribution. UP may have some claim for their new emblems, but since they
weren't protecting CNW, MP, MKT etc. names they shouldn't ask for licencing
agreements for them.
Wi...@credit.valley.railway
news:20040602141330...@mb-m11.aol.com...
> Good for Athearn! They are standing up for all of us, in this case. Now
I
> have some respect for them, even though I'm not pleased with their
policies on
> distribution. UP may have some claim for their new emblems, but since they
> weren't protecting CNW, MP, MKT etc. names they shouldn't ask for
licencing
> agreements for them.
>
"Good for Athearn!" WHAT? you want to support a company that is breaking a
copyright law?
I am for UP on this one, Escpecially on their NEW logos and campaigns. As
for the fallen flag trademarks, that will have to be determined if they are
still entact.
--
Will
N Scale - Credit Valley Railway
www.muskokacomputes.com/CVR_Home.htm
Jon Miller
I don't think they will win any of the fallen flags (or maybe even the older
trademarks). This alone would constitute a huge loss for them. It's kind
of like winning the battle but loosing the war.
Lionel has been using the UP icons etc. on models since the '40s and
then UP loved it. I'm sure this will be brought up in court.
Jon Miller
was a model railroader. Could they request he requse(sp) himself because of
that?
Jon Miller
copyright law?<
Jon Miller
has already denied UP the re-registration on some of the fallen flags.
Could Lionel and others simply be using the court to say OK you can defend
your current trademarks but all those that have gone undefended for 40/60
years you don't have any control over.
This would certainly put to bed _all_ RR's (not just UP) claims to
fallen flags that were never defended.
UP ends up with a couple of current logos and sayings!
Mark Mathu
> Could Lionel and others simply be using the court to say OK you can defend
> your current trademarks but all those that have gone undefended for 40/60
> years you don't have any control over.
I doubt it -- since Union Pacific filed the lawsuit against Lionel and
Athearn, not vice versa.
Jon Miller
Athearn, not vice versa.<
with MTH about the sound issue (QSI decoders in their current line of HO
engines)! Supposedly Lionel _baited_ MTH to start the suit. Is it possible
the lawyer/s sit down and discuss outcomes and decide to "let them sue" and
a good outcomes for us would be ************!
As the singer (is it Neal Diamond) has a good chunk of Lionel ownership
(stock?) I would assume he would be very sensitive to copyright (not what's
happening here of course) but still he would have certain feeling about
these things. If they decided to let UP sue (and I'm sure that was a
precise decision) they must feel they have a reasonable case.
It appears that these companies (Lionel, Athearn, etc.) want the other
party to start the suit. Is there a reason for that?
DaveW
>
> As the singer (is it Neal Diamond) has a good chunk of Lionel ownership
> (stock?) I would assume he would be very sensitive to copyright (not what's
> happening here of course) but still he would have certain feeling about
> these things. If they decided to let UP sue (and I'm sure that was a
> precise decision) they must feel they have a reasonable case.
> It appears that these companies (Lionel, Athearn, etc.) want the other
> party to start the suit. Is there a reason for that?
>
>
It's Neil Young (sans Crazy Horse). There was no way for Lionel, Athearn
et al to sue Onion Pathetic. They were going about their business, not
paying the fees, and therefore unharmed by the whole thing. Only if they
paid the fees, like Kato, could they sue, and then only for the amount
of the fees, which wouldn't make much of a lawsuit in todays world.
But if they just sat back, kept producing models as usual and waited for
the big nasty guys UP in Omaha to come after them, most likely asking
for damages in addition to the fees, then they are defending themselves
and can pull out all the stops.
Regards,
DAve
--
It must be true, I read it on the internet!
Captain Coast Line.com
>"Ccutler0" <ccut...@aol.com> wrote in message
>news:20040602141330...@mb-m11.aol.com...
>> Good for Athearn! They are standing up for all of us, in this case. Now
>I
>> have some respect for them, even though I'm not pleased with their
>policies on
>> distribution. UP may have some claim for their new emblems, but since they
>> weren't protecting CNW, MP, MKT etc. names they shouldn't ask for
>licencing
>> agreements for them.
>>
>
>"Good for Athearn!" WHAT? you want to support a company that is breaking a
>copyright law?
No Will. The point, according to them, is that they are NOT breaking any law, and
that UP's claims are spurious.
That is the whole issue here.
A law is not a law simply because some big wealthy corporation says it is. This is
the way these things are decided. It is the way our system works. You may make
claims all you want, but then you are required to support them in a court of law when
they are challenged. The challengers are claiming that UP has no right to lay claim
to and extract tribute from the use of these items. It is incumbent upon Union
Pacific to either defend their claim or cede it. It is NOT necessary for Athearn or
any other model railroad manufacturer to sue Union Pacific. Once this goes into the
courts, Union Pacific can only own these items if a court of law allows it.
If the court denies UP's claim then they must forever cease and desist from
attempting to require licensing and/or fees for the use of them.
Again, that is the whole issue here.
A thing is not true simply because I cannot prove it to be false.
It is only true if you can prove it to be so.
I do not have to do anything other than demand that you provide proof. If you cannot,
then your claim is dismissed.
That is the way the whole sane world operates.
It is incumbent upon the claimant to defend all claims.
If no one ever challenges the claim, the law will never intervene.
>
>
Captain Handbrake
cat
<nowaye...@unearthlylink.net> purred:
>Those of us who believe that UP is wrong in their heavy handed licensing
>program should support Athearn and Lionel in the only ways we can: buy their
>products; if you know any news reporter types, see if this attempt to impose
>a tax on model railroaders can be reported in way embarrassing to UP.
They aren't trying to "tax" model railroaders. they are simply
trying to protect their trademarks. People whine this is unfair but
would be enraged if someone stole something from them and these
companies trademarks are as much their property as your car is yours..
How would you like it if someone took your car, drove like a maniac,
made a fool of themselves mooning etc., and to all who saw it it
appeared you were the one in the car? That is effectively what
happens when someone uses a company trademark without permission.
Their symbol has value, a value they have worked hard to imbue it
with, so they deserve recompense when others use it for profit.
Why have they just started to enforce licensing? Because
recent goings on in the legal arena have made it a requirement to
"VIGOROUSLY" protect their trademarks and copyrights or they will lose
them. In the past this "vigor" was not so demanded so they let it
slide but with all the problems of piracy, counterfeiting, and
infringement, any company has to be more aggressive or they WILL lose
their trademark. Much of the problem is to be found in the current
insane litigation in the US. Best to blame that than a company for
trying to keep what it legitimately owns. I have to "vigorously"
protect my trademarks and copyrights, so why shouldn't they?
cat
cat
purred:
> As the singer (is it Neal Diamond) has a good chunk of Lionel ownership
>(stock?) I would assume he would be very sensitive to copyright (not what's
>happening here of course) but still he would have certain feeling about
>these things.
Neil Young may own stock in Lionel but he is not on the board
and is not any more aware of Lionel's lack of licensing than any other
modeler. Just because one owns stock in a company does not mean they
have any influence over it or I would have made "Lord of the Rings"
instead of Davidson =^-^=.
Of course this is a trademark issue rather a copyright one and
though they are similar the laws have some striking differences. They
enforce intellectual property rights of slightly different sorts in
different ways.
cat
Edward A. Oates
actually own. There are several pieces to this puzzle.
1. Fallen flags marks: they bought the roads, killed them off, and never
defended the marks before now. MR manufacturers and others have used them
for years. The courts may decide that these have passed into the public
domain.
2. UP's older marks: same as #1.
3. UP's newer marks: they have every right to defend these and I don't think
there is even a question about it. But... They are being heavy handed about
it. The income they will derive from the MR industry is trivial compared to
their other revenues; they might not even cover their accounting costs. What
they should do (in the name of good will) is to let manufacturers apply for
permission to use a set of marks, and then only determine that the applicant
is a legitimate manufacturer and allow those marks on models, decals and
ads: specifically prohibit t-shirts, coffee mugs, et al.
That way, they protect the mark (permission is required), good will is
generated, and the costs are small to UP and the manufacturers.
But we'll let the courts decide who owns what, what's in the public domain,
and who has to get permission to profit by the marks.
Just my non-legal opinion; the same one I sent to UP investor relations (I'm
a stock holder via a transportation fund).
Ed.
in article numsb01ul8dsebv98...@4ax.com, cat at
c...@consultant.com wrote on 6/2/04 4:11 PM:
--
Captain Coast Line.com
Unfortunately your argument is not germane to the issue in question here. The two
defendants are not wrongfully using any property of the Union Pacific Corporation
either real or intellectual.
<< THAT >> is precisely the whole issue here.
It is highly unlikely that Athearn and Lionel are going to usurp the Union Pacific's
business as a common carrier freight hauler. Neither is either company likely to
besmirch the "public image" of the company that brought you the Teapot Dome affair.
There are ways to protect trademarks, but UP has not availed itself of those ways,
but has instead sought to bludgeon the hobby industry for the sins of others. For the
UP to lose this suit against Athearn/Horizon and Lionel is the only just conclusion.
>
>
Captain Handbrake
Marty Hall
> "Ccutler0" <ccut...@aol.com> wrote in message
> news:20040602141330...@mb-m11.aol.com...
> > Good for Athearn! They are standing up for all of us, in this case. Now
> I
> > have some respect for them, even though I'm not pleased with their
> policies on
> > distribution. UP may have some claim for their new emblems, but since they
> > weren't protecting CNW, MP, MKT etc. names they shouldn't ask for
> licencing
> > agreements for them.
> >
>
> "Good for Athearn!" WHAT? you want to support a company that is breaking a
> copyright law?
> I am for UP on this one, Escpecially on their NEW logos and campaigns. As
> for the fallen flag trademarks, that will have to be determined if they are
> still entact.
I support Union Pacific also, the law is the law. The fee is so small
Lionel and Athearn could easily pay it or slightly increase the price.
From what Lionel charges and their following pay willingly, a few
more dollars and cents won't bother them at all
Mark Mathu
news:BCE3B068.1E06%nowaye...@unearthlylink.net...
> 3. UP's newer marks: they have every right to defend these and I don't
think
> there is even a question about it. But... They are being heavy handed about
> it. The income they will derive from the MR industry is trivial compared to
> their other revenues; they might not even cover their accounting costs.
What
> they should do (in the name of good will) is to let manufacturers apply for
> permission to use a set of marks, and then only determine that the
applicant
> is a legitimate manufacturer and allow those marks on models, decals and
> ads: specifically prohibit t-shirts, coffee mugs, et al.
Why do you think it would be OK to allow the trademarks on models, but NOT on
t-shirts or coffee mugs?
> That way, they protect the mark (permission is required), good will is
> generated, and the costs are small to UP and the manufacturers.
Why wouldn't that apply to t-shirts and coffee mugs the same as models?
Mark Mathu
news:40be66cd...@news.west.earthlink.net...
> Unfortunately your argument is not germane to the issue in question here.
The two
> defendants are not wrongfully using any property of the Union Pacific
Corporation
> either real or intellectual.
Union Pacific claims that Athearn and Lionel are commercially using their
trademarks. Their trademarks are their property.
Edward A. Oates
in article bZuvc.76432$oQ6....@twister.rdc-kc.rr.com, Mark Mathu at
ma...@mathu.com wrote on 6/2/04 6:15 PM:
Maybe it could, but it is more likely that t-shirt makers would do some
sarcastic thing about UP than for Athearn or Lionel to do so, if UP were to
scrutinize those uses more than, say, Athearn's, it would be justified.
And maybe the coffee mug industry could claim the same rights as Athearn et
al: they've been freely using the UP and other logos for years without an
enforcement activity on UP's part. If the court rules that any of these
marks are in the public domain, the UP loses big time. But they have chosen
this path, as Athearn and Lionel have chosen theirs. It is not up to the
lawyers and the courts to sort it all out
Edward A. Oates
in article v1vvc.76433$oQ6....@twister.rdc-kc.rr.com, Mark Mathu at
ma...@mathu.com wrote on 6/2/04 6:20 PM:
Unless they've allowed them to pass into the public domain.
Wi...@credit.valley.railway
news:40be66cd...@news.west.earthlink.net...
>
> UP to lose this suit against Athearn/Horizon and Lionel is the only just
conclusion.
>
You are mixing up terms here, you say "just", but we are talking "legally".
Two very different conept. What a fair outcome would be is that ANY product
that bears the UP name or logo should have to pay the fee, BUT not the
markings/logos of what people refer to as "Fallen Flags" because those have
been discontinued by UP.
Bruce Favinger
those ways,
> but has instead sought to bludgeon the hobby industry for the sins of
others. For the
> UP to lose this suit against Athearn/Horizon and Lionel is the only just
conclusion.
> >
> >
> Captain Handbrake
But how much justice can Lionel and Athearn afford? Bruce
Bruce Favinger
justice and legality are two different things. A legal outcome can often be
just but it can also be dependant upon money, skillful lawyers, and the
disposition of whoever hears the case. All three parties involved are
businesses and since lawyers are involved I think its safe to assume that
idealism and principal at not major factors. If the money is as
insignificant as many have concluded then what the hell is going on? Bruce
<Wi...@Credit.Valley.Railway> wrote in message
news:t5wvc.5747$_V4....@read1.cgocable.net...
Marty Hall
It is Neil Young not Diamond. Get your facts straight
Mark Mathu
From the Omaha World-Herald
Thursday, June 3, 2004
http://www.omaha.com/index.php?u_np=0&u_pg=46&u_sid=1112474
Significant points: 1.) The lawsuit is over logos still in use. 2.) A Lionel
official declined to comment on whether it had ever sued over trademark
infringement under its licensing program.
Steve Caple
> I am for UP on this one, Escpecially on their NEW logos and campaigns. As
> for the fallen flag trademarks, that will have to be determined if they are
> still entact.
The fallen flag marks are by any sane standard long lost to
the public domain. As for Uncle Pedophile's current marks and
slogans I really don't care as I like neither them nor
diesels, but I think their approach has exemplified the
stupidity born of arrogance so typical of the modern
corporation and its lackeys.
Down with the running dogs of greed!
--
Mousie Dung
Steve Caple
> A Lionel official declined to comment on whether it had ever
> sued over trademark infringement under its licensing program.
If they did, bet they weren't suing a transportation company!
--
Steve Caple
Mark Mathu
news:BCE3B068.1E06%nowaye...@unearthlylink.net...
> 3. UP's newer marks: they have every right to defend these and I don't
think
> there is even a question about it.
This is what the lawsuit is about.
Mark Mathu
>>> specifically prohibit t-shirts, coffee mugs, et al.
>>
>> Why do you think it would be OK to allow the trademarks on
>> models, but NOT on t-shirts or coffee mugs?
>> ...
>
> Maybe it could, but it is more likely that t-shirt makers would
> do some sarcastic thing about UP than for Athearn or Lionel to
> do so, if UP were to scrutinize those uses more than, say,
> Athearn's, it would be justified.
So which are you proposing?
Just scrutinizing -- or specifically prohibiting?
Captain Coast Line.com
I am not going to argue this with you because you will not listen.
Athearn and Lionel are challenging the claim of UP to the exclusive right to use and
control certain items.
UP has opted to defend their claim.
Just because you claim something does not make it so.
You must be able to prove your claim.
It is not up to me to prove that it is false, proof is your burden to bear as the
claimant. Unless you can show proof, your claim can be ignored.
Athearn and Lionel have, in effect, challenged the claim of UP as being spurious. UP
must now bear the burden of defending their claim and proving the truthfulness of it.
If they fail to so do, then the claim will be dismissed and invalidated. If they
succeed, The model railroad industry is in dire straits.
Rather than type all night, I will refer you to this web site with whose author I
share my sentiments completely.
It is not a simple matter and there is no simple solution. There are precedents and
issues that extend to a time before any of us were born. This issue will be a long
time in the courts and the decision is not likely to please any faction.
>
>
Captain Handbrake
Captain Coast Line.com
>.............. If the money is as
>insignificant as many have concluded then what the hell is going on? Bruce
>
That is a part of the puzzle. The money is a trivial sum, but ceding control of the
business to a strongarm partner is an issue. Once UP has control they can dictate
what models can be made, when and by whom. Others will follow suit and you will only
be able to purchase what the railroad companies will allow you to purchase.
Think not?
You'd better think again.
Go read what Andy Harman wrote in his web site:
http://www.gp30.com/news/
>
>
Captain Handbrake
Mark Mathu
>> Union Pacific claims that Athearn and Lionel are commercially using their
>> trademarks. Their trademarks are their property.
>
> I am not going to argue this with you because you will not listen.
> Athearn and Lionel are challenging the claim of UP to the exclusive right
to use and
> control certain items.
> UP has opted to defend their claim.
> Just because you claim something does not make it so.
> You must be able to prove your claim.
No doubt about that -- I used the word "claim" in my two-sentence message
only to explain the UP side of the disagreement. "Claim" has a bit of
ambiguity in it, and that's why there is a lawsuit. What I wrote (above) is
the heart of the UP's claim.
But as I stated yesterday - I think the law is on the side of Union Pacific
on this one.
Mark Mathu
> If they succeed, The model railroad industry is in dire straits.
Why do you think this is so?
Regardless of the outcome, I feel that the MR industry has a bright future.
cat
Line.com purred:
>Unfortunately your argument is not germane to the issue in question here. The two
>defendants are not wrongfully using any property of the Union Pacific Corporation
>either real or intellectual.
most certainly they are using the marks wrongfully. UP OWNS
those symbols and others are profiting from them. It has nothing to do
with what business any of them are in. If some company wanted to make
a KFC marked train shouldn't they pay the company to use their
markings and name? When a business changes hands the name and the
"good will" which accrues to it has a dollar value and one must
recompense the owner of said name for its use. This is an issue of the
value of their property and others using it for profit.
>There are ways to protect trademarks, but UP has not availed itself of those ways,
>but has instead sought to bludgeon the hobby industry for the sins of others.
And what mechanisms are those? Since Lionel and Athern did not
respond to UP's requirements to use their property court is the only
way to decide the issue.
> For the
>UP to lose this suit against Athearn/Horizon and Lionel is the only just conclusion.
In all likelihood given past decisions UP will win this one.
cat
cat
Line.com purred:
>Athearn and Lionel have, in effect, challenged the claim of UP as being spurious. UP
>must now bear the burden of defending their claim and proving the truthfulness of it.
You have it reversed it is UP making the challenge to Athern
and Lionel for stealing their property. It will be up to Lionel and
Athern to prove they legally have possession of UP's intellectual
properties.
>If they fail to so do, then the claim will be dismissed and invalidated. If they
>succeed, The model railroad industry is in dire straits.
Oh, bull. The trademark thing is not causing any legitimate
harm. In fact it will be a help to smaller companies when it comes
time to defend their names and designs from pirates since there will
be a clear decision on the issue for lower courts to go by.
>Rather than type all night, I will refer you to this web site with whose author I
>share my sentiments completely.
>
>http://www.gp30.com/news/
And I suppose he is an intellectual properties attorney? He
isn't? Oh well then he is not the source you should be looking to.
find an attorney, any attorney and you will have a much better chance
of a useful comment than a layman. Copyright and trademark are among
the most complex issues in law and have pitfalls the layman has no
comprehension of.
cat
cat
<steve...@commoncast.net> purred:
No but they did sue a kid using his own name, "Lionel", when
he tried to start a self named band. They have VERY aggressively
defended their name numerous times. They know they are improperly
using another company's property because they have sued others for
doing the same with their property.
The idea that they can only sue other transportation companies
is spurious. Their name and trademark is theirs regardless of what it
appears on.
cat
Charles P. Woolever
BEGINNING. This is what you are supposed to do when you are issued a
trademark.
Union Pacific has not defended anything SINCE THE BEGINNING. They are
just starting to in 2004.
That part I'm sure will be shown in court. Defending your mark is part
of having a trademark. You must show you have used the mark and defended
it. Lionel can say, whether you agree with it or not, that they have
defended it. Just like Microsoft did to that kid in Canada last year.
Union Pacific can not claim that fact.
Charles
In article <4vstb0taqjgs33n43...@4ax.com>,
Charles P. Woolever
cat <c...@consultant.com> wrote:
> On Wed, 02 Jun 2004 23:55:18 GMT, Captain Handbrake@Atlantic Coast
> Line.com purred:
>
>
> >Unfortunately your argument is not germane to the issue in question here.
> >The two
> >defendants are not wrongfully using any property of the Union Pacific
> >Corporation
> >either real or intellectual.
>
> most certainly they are using the marks wrongfully. UP OWNS
> those symbols and others are profiting from them. It has nothing to do
> with what business any of them are in. If some company wanted to make
> a KFC marked train shouldn't they pay the company to use their
> markings and name? When a business changes hands the name and the
> "good will" which accrues to it has a dollar value and one must
> recompense the owner of said name for its use. This is an issue of the
> value of their property and others using it for profit.
Yes, and KFC does a good job of defnding their TMs. With a trademark,
not like copyrights, you must show you *use* and *defend* your
trademarks. A copyright is yours no matter what. You don't have to
defend it to be a copyright and be valid.
With a trademark, you must show that you use the mark and have been
using it and that you have defended that mark since you started using it.
The UP has failed at the defend part. It could easily be shown that UP
never defended their marks from toy manuf. until 2004. They let anyone
make things, since model trains were invented.
I think many of hte people on this board keep confusing the specifics of
trademarks with copyrights. While you end up with a piece of property
you created, there are differences in getting to that point and keeping
it.
Charles
Wi...@credit.valley.railway
>
You have GOT TO BE KIDDING ME!
"dire straits"????
Why because it will cost you $1.00 or $2.00 more per part with a corporate
trademark on it?
The Model Railroad Industry will only be in dire straits if it's current
user base shrinks.
I still think what manufactures should do is put out units with "data info"
only and then sell decal sets of dry transfer sets of the particular roads
and allow the model railroader to customize his own cars. That would be a
whole lot easier for the manufacturers and distributors and LHS. They would
stock ONE kind of each unit, and have a drawer of decals/transfers. I go in
and pick up an unbranded piece of rolling stock and a set of decals for
whatever road I am modeling.
OR, in my case (and many other serious modelers I know) pick up the rolling
stock and bring it home and custom letter it.
Howard Zane
Train show and the Piermont Division. If Lionel, Athearn, or whoever wants
to put my company logos on their products, I'll go over to their
headquarters and make them all breakfast every day for five years and to
their homes at night and tuck them in bed. I'll even read them "The Little
Engine That Could" before turning out the lights.
When asked if I fear the terrorists.....my reply was....."To some degree,
but my real fear is the thousands upon thousands of lawyers the law schools
are turning out each year"!!!!!
Spam time.....don't forget our summer Timonium show in Maryland, June 19/20.
www.gsmts.com for details
HZ
--
Howard Zane
5236 Thunder Hill Road
Columbia, MD 21045
410-730-1036
"Charles P. Woolever" <chas...@rochester.rr.com> wrote in message
news:chaswool-E9053E...@syrcnyrdrs-01-ge0.nyroc.rr.com...
Wi...@credit.valley.railway
>
>
>
> in article v1vvc.76433$oQ6....@twister.rdc-kc.rr.com, Mark Mathu at
> ma...@mathu.com wrote on 6/2/04 6:20 PM:
>
> > <Captain Handbrake@Atlantic Coast Line.com> wrote in message
> > news:40be66cd...@news.west.earthlink.net...
> >
> >> Unfortunately your argument is not germane to the issue in question
here.
> > The two
> >> defendants are not wrongfully using any property of the Union Pacific
> > Corporation
> >> either real or intellectual.
> >
> > Union Pacific claims that Athearn and Lionel are commercially using
their
> > trademarks. Their trademarks are their property.
> >
> >
> Unless they've allowed them to pass into the public domain.
>
With corporate Trademarks, it is 100 years before it becomes public domain.
I know this because I put out a line of Public Domain movies on DVD. Public
Domain used to occur 28 years after a work was produced, unless the creator
applied for an extension, which put it to 50 yeras. The Sonny Bono act of
the mid-90s extened that to 75 years. Disney is trying to extend it again.
Right now some films are PD even though they were done in the 1960s, while
some have been protected for years.
Corporate Trademarks are valid for 100 years, this is why Disney has
trademarked Mickey Mouse his first toons were made in 1928, and hence are PD
right now. WB did the same thing with Bugs Bunny, Daffy, Porky and all their
"stars", they are now trademarks of WB and protected for another 100 years.
So the only Trademarks that would fit into the PD would be those of
companies that went out of business before 1904 and were not picked up by a
new company.
Wi...@credit.valley.railway
> BEGINNING. This is what you are supposed to do when you are issued a
> trademark.
>
> Union Pacific has not defended anything SINCE THE BEGINNING. They are
> just starting to in 2004.
>
> That part I'm sure will be shown in court. Defending your mark is part
> of having a trademark. You must show you have used the mark and defended
> it. Lionel can say, whether you agree with it or not, that they have
> defended it. Just like Microsoft did to that kid in Canada last year.
> Union Pacific can not claim that fact.
>
The ONLY difference between a Trademark and Copyright are "What They Protect".
-----------------------------------------------------------------------------------------------------------
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
-----------------------------------------------------------------------------------------------------------
Once registered, it is yours, "defending" it as you say can be done at anytime, the procedure is the same for both.
Wi...@credit.valley.railway
news:chaswool-E9053E...@syrcnyrdrs-01-ge0.nyroc.rr.com...
> BEGINNING. This is what you are supposed to do when you are issued a
> trademark.
>
> Union Pacific has not defended anything SINCE THE BEGINNING. They are
> just starting to in 2004.
>
> That part I'm sure will be shown in court. Defending your mark is part
> of having a trademark. You must show you have used the mark and defended
> it. Lionel can say, whether you agree with it or not, that they have
> defended it. Just like Microsoft did to that kid in Canada last year.
> Union Pacific can not claim that fact.
>
> Charles
>
I can tell from this that you have created nothing in your life Charles.
If you have created anything, it is your property. You have the right to use
it. you have the right to give others permission to use it.
Others do not have an implied permission to use it, they need specific
permission.
Just because UP has not legally defended their right of intellectual claim
on the trademarks that their company pocesses does not negate their right to
defend the trademark.
Please, at least open a book on corporate law (maybe even read it) before
you start commenting and making yourself look foolish.
Mike Tennent
Not entirely.
"Not only have Lionel and Athearn failed to license use of Union
Pacific's historic trademarks"
That appears to include the fallen flags, though it's a little vague.
Mike Tennent
"IronPenguin"
Mike Tennent
>Yes, and KFC does a good job of defnding their TMs. With a trademark,
>not like copyrights, you must show you *use* and *defend* your
>trademarks. A copyright is yours no matter what. You don't have to
>defend it to be a copyright and be valid.
>
>With a trademark, you must show that you use the mark and have been
>using it and that you have defended that mark since you started using it.
>
>The UP has failed at the defend part. It could easily be shown that UP
>never defended their marks from toy manuf. until 2004. They let anyone
>make things, since model trains were invented.
>
>
>
>I think many of hte people on this board keep confusing the specifics of
>trademarks with copyrights. While you end up with a piece of property
>you created, there are differences in getting to that point and keeping
>it.
>
>Charles
There you go, throwing facts and intelligent comments into a rmr
argument... <g>
Mike Tennent
"IronPenguin"
Ken Hammer
(Buy my meat or I'll blow up your restaurant) to this lawsuit is
ridiculous!!
Maybe UP is concerned about their trademark, because most of Athearn
and Lionels merchandise is made in China, and China leads the world in
producing knock off and bogus stuff. If we take the paranoid perspective
of the Harmon article to heart, maybe UP is afraid that China will start a
UP railroad of there own!! Think it wont happen? Maybe it will! There, I
just
said it, so it might be true, no wait, it is true!!!!
Why oh why, would UP care if a manufacturer created a locomotive that
hasn't been used in 50 odd years? Because it's not modern? What the heck
is that?
If UP wants to start dictating which models that a manufacture can
produce,
couldn't the manufacture say "forget it, we're not going to produce any more
UP stuff"?
--
Ken Hammer
University Of Michigan
If ignorance is bliss, why aren't more people happy?
Edward A. Oates
much review: Lionel, Athearn, LifeLike, Kato, et al for use on models,
decals, and advertising of those products. Those companies could even be
required to sign a license agreement stipulating allowed and disallowed uses
and giving UP the sole right to demand cessation of uses UP deems to be not
showing UP in a good light. The cost to the users should be the actual cost
of administering the program or free: it costs Up the same to approve a well
known boutique manufacturer as it does to approve Athearn; in any case 5% or
so of sales has nothing to do with UP costs.
Other users of more dubious reputation might be subject to stricter (and
more costly) reviews, and they should pay for it.
To me the issue for UP is to legitimately protect their trademarks, etc..
They are a transportation company, not a media company (yet :-), and trying
to turn logo licensing into a profit center may not be worth the cost to
them. But as I've said in the past, their current logos are their property
and they have every right to control them or charge for them as they see
fit.
I suspect the reason that Athearn and Lionel have not signed the licensing
agreement is that it specifies a payment schedule not only for the current
logos, but for older UP logos and fallen flag logos which have been used
freely for years. For all I know, A & L tried to negotiate inclusion of only
current logos and failed. They may have decided to force the issue to court
and agree to pay for current logos and exclude old ones. Maybe Athearn's or
Lionel's lawyers will tell us what their defense is for using current logos
without license.
Ed
in article KYAvc.78733$oQ6....@twister.rdc-kc.rr.com, Mark Mathu at
ma...@mathu.com wrote on 6/3/04 1:04 AM:
--
Ed Oates
http://homepage.mac.com/edoates
DCC wiring information is at http://www.wiringfordcc.com
To help eliminate spam and scams, send it to FTC gov <u...@ftc.gov>
(hee hee hee: Happy spam bot message)
Edward A. Oates
in article 4kdub05jac3lk00hb...@4ax.com, Ken [NY) at
em...@IsBelow.Text wrote on 6/3/04 7:42 AM:
> On Wed, 02 Jun 2004 16:11:25 -0700, cat <c...@consultant.com> mumbled
> incoherently:
>
>> On Wed, 02 Jun 2004 17:35:50 GMT, "Edward A. Oates"
>> <nowaye...@unearthlylink.net> purred:
>>
>>> Those of us who believe that UP is wrong in their heavy handed licensing
>>> program should support Athearn and Lionel in the only ways we can: buy their
>>> products; if you know any news reporter types, see if this attempt to impose
>>> a tax on model railroaders can be reported in way embarrassing to UP.
>>
>> They aren't trying to "tax" model railroaders. they are simply
>> trying to protect their trademarks.
>
> No, Edward is correct. Any added costs of business filters
> down the food chain and of course is paid for by the hobbiest. That's
> the bottom line.
> Personally, I wish that Athearn and Lionel would just drop the
> UP logo. There are plenty of decals out there or we could produce our
> own logos using modern printers.
The decals from Microscale at al are also subject to the UP licensing
program. I've not found a decent homebrew decal system The inkjet stuff runs
like crazy (haven't tried Epson Durabright, though) and don' t have access
to an old Alps printer.
It would sure be interesting, though, for Athearn, et al, to sell models
completely painted except for the protected logos and to provide blank decal
sheets and printing instructions and/or kits to finish the job use the
modeler's own artwork. Hmmmmmmm.
>
> Cordially,
> Ken (NY)
> Chairman,
> Department Of Redundancy DepartmentŽ
> ___________________________________
> email:
> http://www.geocities.com/bluesguy68/email.htm
>
> "It should be the policy of the United States to
> support efforts to remove the regime headed by
> Saddam Hussein from power in Iraq and to promote
> the emergence of a democratic government to replace
> that regime,"
> --1998 Iraq Liberation Act (Public Law 105-338)
> signed by Bill Clinton
>
> When ye encounter the infidels, strike off their heads
> till ye have made a great slaughter among them, and of
> the rest, make fast the fetters.
> http://www.truthnet.org/islam/Quran/Rodwell/47/
>
> Q: What the hardest thing about rollerblading?
> A: Telling your parents youšre gay.
>
> spammers can send mail to u...@ftc.gov
Jon Miller
Read, it's written as a question not me stating a fact!
Jon Miller
will have to give UP all tooling etc. if UP disproves of the product. This
is one of the big reasons the larger companies didn't sign up. If UP didn't
like their boxcars for example and they had signed the contract then UP
could ask for the molds etc.
It's really much bigger than most people think.
And the bottom line is not really protecting the marks (that's easy to
do), UP really thinks (or corporate figures have argued) that they an really
make money on this.
Jon Miller
Wi...@credit.valley.railway
news:4kdub05jac3lk00hb...@4ax.com...
> On Wed, 02 Jun 2004 16:11:25 -0700, cat <c...@consultant.com> mumbled
> incoherently:
>
> >On Wed, 02 Jun 2004 17:35:50 GMT, "Edward A. Oates"
> ><nowaye...@unearthlylink.net> purred:
> >
> >>Those of us who believe that UP is wrong in their heavy handed licensing
> >>program should support Athearn and Lionel in the only ways we can: buy
their
> >>products; if you know any news reporter types, see if this attempt to
impose
> >>a tax on model railroaders can be reported in way embarrassing to UP.
> >
> > They aren't trying to "tax" model railroaders. they are simply
> >trying to protect their trademarks.
>
> No, Edward is correct. Any added costs of business filters
> down the food chain and of course is paid for by the hobbiest. That's
> the bottom line.
> Personally, I wish that Athearn and Lionel would just drop the
> UP logo. There are plenty of decals out there or we could produce our
> own logos using modern printers.
>
Full agreement here Ken.
Marty Hall
> On Wed, 2 Jun 2004 13:14:49 -0700, "Jon Miller" <at...@inow.com>
> purred:
>
>
> > As the singer (is it Neal Diamond) has a good chunk of Lionel ownership
> >(stock?) I would assume he would be very sensitive to copyright (not what's
> >happening here of course) but still he would have certain feeling about
> >these things.
>
> Neil Young may own stock in Lionel but he is not on the board
> and is not any more aware of Lionel's lack of licensing than any other
> modeler. Just because one owns stock in a company does not mean they
> have any influence over it or I would have made "Lord of the Rings"
> instead of Davidson =^-^=.
> Of course this is a trademark issue rather a copyright one and
> though they are similar the laws have some striking differences. They
> enforce intellectual property rights of slightly different sorts in
> different ways.
>
> cat
Neil Young does more than own stock in Lionel
Marty Hall
> Will wrote:
> > I am for UP on this one, Escpecially on their NEW logos and campaigns. As
> > for the fallen flag trademarks, that will have to be determined if they are
> > still entact.
>
> The fallen flag marks are by any sane standard long lost to
> the public domain. As for Uncle Pedophile's current marks and
> slogans I really don't care as I like neither them nor
> diesels, but I think their approach has exemplified the
> stupidity born of arrogance so typical of the modern
> corporation and its lackeys.
>
> Down with the running dogs of greed!
At least Mousie Dung, you signed your name correctly, what a load of spunk
Marty Hall
> Mark Mathu wrote:
> > A Lionel official declined to comment on whether it had ever
> > sued over trademark infringement under its licensing program.
>
> If they did, bet they weren't suing a transportation company!
You wouldn't know what or whom they sued. You've got your head stuck
up Jermartys ass and are totally occupied with your HO wienie trains.
Marty Hall
Whoa, now we have heard from the lawyer among us. Heed and listen
Dog
Charles P. Woolever
See: http://www.forbes.com/2003/01/15/cz_mf_0115copyright.html
Trademarks and copyrights have TOTALLY different laws and rules.
That is why som many people are screwed up about this. They keep saying
things that are technically about copyrights and not about trademarks.
They are different, have different rules, and are done in different
offices of the government.
Charles
In article <H8Fvc.10462$XY6.1...@read2.cgocable.net>,
Charles P. Woolever
Congress) and have worked with lawyers at my last place of employment on
trademarking names.
As evidense from your Disney post, you are confusing trademarks and
copyrights. They are different.
Just as corporate law is different than trademark law.
Charles
In article <TmFvc.5817$_V4....@read1.cgocable.net>,
Charles P. Woolever
through the Library of Congress and Patents and Trademarks through the
Patent and Trademark Office), what you have to submit as proof and how
long you can keep the marks, copyright or patent. For example Open
Source is at risk of losing the Unix trademark in part because "...it
HAS to show some level of defending its trademark lest it loose the
trademark." Open Source hasn't done a good job of defending their mark
so companies like Apple who have been using the Unix mark, may be able
to do so without paying.
Also trademarks can lapse if you fail to use the mark for 5 years. A
copyright has no such problem.
There are so many differences, that is why laywers specialize in
different areas.
Charles
In article <kyFvc.10466$XY6.1...@read2.cgocable.net>,
David P Harris
Different people have made different claims regarding this issue.
I can't find the appropriate US documentation, but the UK law says:
(2) A person infringes a registered trade mark if he uses in the course
of trade a sign where because -
(a) the sign is identical with the trade mark and is used in relation to
goods or services similar to those for which the trade mark is
registered, or
(b) the sign is similar to the trade mark and is used in relation to
goods or services identical with or similar to those for which the trade
mark is registered, there exists a likelihood of confusion on the part
of the public, which includes the likelihood of association with the
trade mark.
"(3) A person infringes a registered trade mark if he uses in the course
of trade a sign which-
(a) is identical with or similar to the trade mark, and
(b) is used in relation to goods or services which are not similar to
those for which the trade mark is registered, where the trade mark has a
reputation in the United Kingdom and the use of the sign, being without
due cause, takes unfair advantage of, or is detrimental to, the
distinctive character or the repute of the trade mark."
At least in the UK, it would appear that using a Trademark on a Model
Train would not be construed as infringement, as it is not used "in
relation to goods or services similar to those for which the trade mark
is registered". A MRR would not appear to directly compete with the
prototype, and the public would not likely be confused by its usage.
However, you could argue such usage is "detrimental to the distinctive
character or repute of teh trade mark", but I think such an argument
would be frivolous.
In fact, I think you can argue that use of trademarks on MRR equipment
PROMOTES the tademark, and perhaps the railroads should be paying the
MRR maufacturers for advertising. At least, I would argue the benefits
to the railroad and to the MRR manufacturer are about equal - a
"win-win" situation: manufacturer sells more product, the railroad gets
exposure.
David
Charles P. Woolever wrote:
> There are many more difference. Where you file to get one (copyright
>....
Wi...@credit.valley.railway
> Nothing to do with Trademarks. That is copyright you are talking about.
>
> See: http://www.forbes.com/2003/01/15/cz_mf_0115copyright.html
>
> Trademarks and copyrights have TOTALLY different laws and rules.
>
> That is why som many people are screwed up about this. They keep saying
> things that are technically about copyrights and not about trademarks.
> They are different, have different rules, and are done in different
> offices of the government.
>
I know this Charles, like I said, WB and Disney wanted MORE control over
their creations than copyright allowed, so the established their main
characters as corporate trademarks. It is easier to protect them that way.
Wi...@credit.valley.railway
> I've created much and have had things officially copyrighted (Library of
> Congress) and have worked with lawyers at my last place of employment on
> trademarking names.
>
> As evidense from your Disney post, you are confusing trademarks and
> copyrights. They are different.
>
> Just as corporate law is different than trademark law.
>
> Charles
>
See above post.
If something is a trademark, a company has greater control over it for a
longer period of time.
Keith Norgrove
wrote:
>Hi-
>
>Different people have made different claims regarding this issue.
>
>I can't find the appropriate US documentation, but the UK law says:
>
>At least in the UK, it would appear that using a Trademark on a Model
>Train would not be construed as infringement, as it is not used "in
>relation to goods or services similar to those for which the trade mark
>is registered". A MRR would not appear to directly compete with the
>prototype, and the public would not likely be confused by its usage.
>
In spite of this our new private train companies in the UK have
successfully pressured the manufacturers into licencing deals with
little apparent resistance. I suspect that the model companies were
seduced by the idea of exclusive deals keeping the opposition out.
It has now reached the point where they are claiming to have to get
licenses from both the operating railway for the logos and livery and
from the manufacturer, eg GM for the class 66, Bombardier for the
voyager for the right to make the model itself.
There does not seem to be any real legal basis for this other than the
crippling costs of a defence.
Keith
Make friends in the hobby.
Visit <http://www.grovenor.dsl.pipex.com/>
Garratt photos for the big steam lovers.
DaveW
all artificts and references to the fallen flags.
Once they have the big names (Athearn, Lionel) under thier control, they
will simply disallow any Southern Pacific, Western Pacific, Missouri
Pacific, Chicago North Western, etc. rolling stock, decals, t-shirts,
neck ties, stained glass windows, what have you.
Only allowed production will be puke yellow with the shield, and bye the
way, the fees will be going UP.
Good think the warbonnet scheme was on the Santa Fe!
Regards,
DAve
Captain Coast Line.com
wrote:
>........ I've not found a decent homebrew decal system The inkjet stuff runs
>like crazy (haven't tried Epson Durabright, though) and don' t have access
>to an old Alps printer.
I do and it is not very good. Not worth the work and trouble for an inferior end
product.
>
>It would sure be interesting, though, for Athearn, et al, to sell models
>completely painted except for the protected logos and to provide blank decal
>sheets and printing instructions and/or kits to finish the job use the
>modeler's own artwork. Hmmmmmmm.
That won't work either. UP claims rights to the combination of Armour Yellow and
Harbor Mist Gray with scarlet striping in a characteristic Union Pacific motif.
They can't forbid the use of any of those colors, BUT, they can claim rights to the
use of them in a recognized motif.
You would have to force them to sue you on that issue also.
Coca-Cola, Nike and others do the same thing. You can't use the wave or the swoosh
regardless of whether or not you put the word Coca-Cola or Nike on the product.
>
>
Captain Handbrake
JB/NL
news:yoBvc.78955$oQ6....@twister.rdc-kc.rr.com:
><Captain Handbrake@Atlantic Coast Line.com> wrote in message
> news:40bed6e1...@news.west.earthlink.net...
>
>> If they succeed, The model railroad industry is in dire straits.
>
>
> Why do you think this is so?
>
> Regardless of the outcome, I feel that the MR industry has a bright
> future.
>
In undecorated cars ?
Y'know, this makes me happy to have chosen a non-US prototype ....
--
Jeroen "JN-Scale" Braamhaar <tsu...@xs4all.nl>
There's no N Scale like Japanese N Scale!
Layout: http://www.xs4all.nl/~tsunami/tokaitetsudou/
Edward A. Oates
prevails completely, I suspect that most if not all real railroads will
impose licensing schemes.
Athearn et al seemed to have no problem at all licensing Coca-Cola and John
Deere products. I don't know their terms, but I suspect they paid something
(or were paid for the advertising?). I suspect the whole thing comes down to
some of the terms in the UP licensing agreement; maybe not even over fallen
flags. One poster mentioned something about turning over the dies and
moldings if UP didn't like the actual product. I can't imagine anyone
agreeing to such a term; I invest thousands producing the molds, and UP
says, "You missed a rivet. Sorry, not approved. Give us the molds."
I'm starting to agree with the poster who suggested that Athearn et al
eschew modeling UP at all. Then go to them and see if they would like to
advertise on Athearn models and charge UP for the ads. Hahahahaha.
Ed
in article Xns94FDE39AB33E...@194.109.133.29, JB/NL at
tsu...@xs4all.nl wrote on 6/3/04 1:23 PM:
> "Mark Mathu" <ma...@mathu.com> wrote in
> news:yoBvc.78955$oQ6....@twister.rdc-kc.rr.com:
>
>> <Captain Handbrake@Atlantic Coast Line.com> wrote in message
>> news:40bed6e1...@news.west.earthlink.net...
>>
>>> If they succeed, The model railroad industry is in dire straits.
>>
>>
>> Why do you think this is so?
>>
>> Regardless of the outcome, I feel that the MR industry has a bright
>> future.
>>
>
> In undecorated cars ?
>
> Y'know, this makes me happy to have chosen a non-US prototype ....
--
Marty Hall
> Please, spare me the conspiracy theories!! Comparing an extortion scheme
> (Buy my meat or I'll blow up your restaurant) to this lawsuit is
> ridiculous!!
> Maybe UP is concerned about their trademark, because most of Athearn
> and Lionels merchandise is made in China, and China leads the world in
> producing knock off and bogus stuff. If we take the paranoid perspective
> of the Harmon article to heart, maybe UP is afraid that China will start a
> UP railroad of there own!! Think it wont happen? Maybe it will! There, I
> just
> said it, so it might be true, no wait, it is true!!!!
> Why oh why, would UP care if a manufacturer created a locomotive that
> hasn't been used in 50 odd years? Because it's not modern? What the heck
> is that?
> If UP wants to start dictating which models that a manufacture can
> produce,
> couldn't the manufacture say "forget it, we're not going to produce any more
> UP stuff"?
>
If they win the battle about the fallen flags then don't make anymore
of that stuff. Hell, we all have enough toys to last us anyhow, and
the newbies can model other road names. Besides, remember back in the
early days, Lionel lettered most of their trains Lionel Lines. What's
wrong with that, you could have Athearn Lines, Life Lines, Bachman
Lines, etc. The fun of running the stuff is still there, who the hell
cares what lettering it has on it. This is about model railroading,
the operation of trains or if you like Lionel the operation of toy
trains. It's all one in the same thing anyhow
JB/NL
news:BCE4DDA7.1E74%nowaye...@unearthlylink.net:
> Don't be too thrilled yet. Unless you model an imaginary railroad, if
> UP prevails completely, I suspect that most if not all real railroads
> will impose licensing schemes.
Actually, my prototype's products are usually already licensed from the
railroad that runs them ... so there's not much chance of things changing,
other than for the better - most of the JR companies (as well as the
private railroads) seem to rather enjoy the fact their trains being turned
into high quality models .. even if they're produced overseas :-D
> I'm starting to agree with the poster who suggested that Athearn et
> al eschew modeling UP at all. Then go to them and see if they would
> like to advertise on Athearn models and charge UP for the ads.
> Hahahahaha.
Wouldn't work either, I think UP would simply come back and slam them.
I foresee a world of freelance railroads and undecorated cars ...
United Potato Railroad, Dark grey on Lemon with a purple stripe anyone ?
;-)
Marty Hall
> "Charles P. Woolever" <chas...@rochester.rr.com> wrote in message
> news:chaswool-875EC0...@syrcnyrdrs-03-ge0.nyroc.rr.com...
> > I've created much and have had things officially copyrighted (Library of
> > Congress) and have worked with lawyers at my last place of employment on
> > trademarking names.
> >
> > As evidense from your Disney post, you are confusing trademarks and
> > copyrights. They are different.
> >
> > Just as corporate law is different than trademark law.
> >
> > Charles
> >
>
> See above post.
> If something is a trademark, a company has greater control over it for a
> longer period of time.
Actually, who cares. If UP wins the price of your toys is going up a
few pennies (as if that were going to break you) and if the companies
win they will raise prices to pay for the legal defense. Either way,
you are going to pay more for your trains. Actually it is about time.
I think you should accept this as part of the hobby. I didn't hear
any moaning when DCC came in and the price of locos shot up $25-30
each. So why bitch now
Edward A. Oates
in article Xns94FDED62B2B9...@194.109.133.29, JB/NL at
tsu...@xs4all.nl wrote on 6/3/04 2:20 PM:
> "Edward A. Oates" <nowaye...@unearthlylink.net> wrote in
> news:BCE4DDA7.1E74%nowaye...@unearthlylink.net:
>
>> Don't be too thrilled yet. Unless you model an imaginary railroad, if
>> UP prevails completely, I suspect that most if not all real railroads
>> will impose licensing schemes.
>
> Actually, my prototype's products are usually already licensed from the
> railroad that runs them ... so there's not much chance of things changing,
> other than for the better - most of the JR companies (as well as the
> private railroads) seem to rather enjoy the fact their trains being turned
> into high quality models .. even if they're produced overseas :-D
When Athearn decided to do the CalTrain commuter cars, I got the photos for
them with permission from Caltrain (access to the yards, actual paint
blueprints, etc.); they were very cooperative and were thrilled that Athearn
was going to produce their Baby Bullet cars and granted permission to use
the design enthusiastically. It would be nice it UP were so accommodating,
but I guess that's in the past.
Ed.
David J. Starr
Mark Mathu wrote:
>
> "U.P. sues model train manufacturers over logos"
>
> From the Omaha World-Herald
> Thursday, June 3, 2004
> http://www.omaha.com/index.php?u_np=0&u_pg=46&u_sid=1112474
>
> Significant points: 1.) The lawsuit is over logos still in use. 2.) A Lionel
> official declined to comment on whether it had ever sued over trademark
> infringement under its licensing program.
UP must have more corporate lawyers than is good for them. I don't
see the point. There isn't enough money in licensing fees from small
potato companies like Athearn and Lionel to pay the court costs of this
suit. Up until now, the real railroads considered model railroads to be
good free advertising. The rules about defending your trademark haven't
changed to my knowledge. Lionel has been making rolling stock painted
for UP for better than 50 years, and Athearn nearly as long. If it's
been OK for 50 years, what makes it a lawsuit matter now? Could it be
that bean counters and lawyers are gaining control of the real
railroads?
David Starr
Trainman
Mark Mathu <ma...@mathu.com> wrote in message
news:qmBvc.78929$oQ6....@twister.rdc-kc.rr.com...
> <Captain Handbrake@Atlantic Coast Line.com> wrote in message
> news:40bed6e1...@news.west.earthlink.net...
>
their
> >> trademarks. Their trademarks are their property.
> >
> > Athearn and Lionel are challenging the claim of UP to the exclusive
right
> to use and
> > control certain items.
> > UP has opted to defend their claim.
> > Just because you claim something does not make it so.
> > You must be able to prove your claim.
>
>
> No doubt about that -- I used the word "claim" in my two-sentence message
> only to explain the UP side of the disagreement. "Claim" has a bit of
> ambiguity in it, and that's why there is a lawsuit. What I wrote (above)
is
> the heart of the UP's claim.
>
> But as I stated yesterday - I think the law is on the side of Union
Pacific
> on this one.
>
>
OTOH, Lionel and Athearn have 100 years of precedent on their side.
Don
--
don.de...@prodigy.net
http://www.geocities.com/don_dellmann
moderator: WisMode...@yahoogroups.com
moderator: MRP...@yahoogroups.com
moderator: vint...@yahoogroups.com
co-moderator: SCE...@Yahoogroups.com
http://groups.yahoo.com/group/MRPics
http://groups.yahoo.com/group/vintageHO
Mark Mathu
Trains.com
06/02/2004
http://www.trains.com/Content/Dynamic/Articles/000/000/005/185odapf.asp
The complaint is 43 pages long!
Mark Mathu
news:vvcub0l6e74s14evm...@4ax.com...
>>> 3. UP's newer marks: they have every right to defend these and I don't
>>> think there is even a question about it.
>>
>>This is what the lawsuit is about.
>
> Not entirely.
> "Not only have Lionel and Athearn failed to license use of Union
> Pacific's historic trademarks"
> That appears to include the fallen flags, though it's a little vague.
"The lawsuit, however, is over logos still in use."
Source: Omaha World-Herald
http://www.omaha.com/index.php?u_np=0&u_pg=46&u_sid=1112474
Mark Mathu
news:qsLvc.32997$oh7....@nwrddc01.gnilink.net...
> Once they have the big names (Athearn, Lionel) under thier control, they
> will simply disallow any Southern Pacific, Western Pacific, Missouri
> Pacific, Chicago North Western, etc. rolling stock, decals, t-shirts,
> neck ties, stained glass windows, what have you.
Whoa... you've been watching too many reruns of "The X-Files."
Mark Mathu
news:BCE48F77.1E4D%nowaye...@unearthlylink.net...
> Other users of more dubious reputation might be subject to stricter (and
> more costly) reviews, and they should pay for it.
... like Accurail?
John Obert
Neither side would want a judge deciding what is legal since that can be
used in other cases
Is this is just a tactic to get better terms?
Would not the license give UP the right to determine who makes what down
the road ?
Athearn can make Ac4400, Kato Dash 9s and Proto the macs and Broadway I
cannot afford them
I.e. just cause I have the license to make Cubs baseball hats does not
mean I can make their Cubs shirts or even Cubs batting helmets
HobbyOasis
<ma...@mathu.com> writes:
>Union Pacific claims that Athearn and Lionel are commercially using their
>trademarks. Their trademarks are their property.
The problem with the trademark dispute is Union Pacific going back as far as
possible and claiming trademarks on every railroad or former railroad logo as
enforceable trademarks. Now the current trademarks they'll likely have a
legitimate argument. However the fallen flags and older UP markings that have
not been used in many years but have been used on models (& T-Shirts, etc) may
well not be trademark protected having gone to public domain.
Lionel and Athearn have disagreed that the UP has valid trademarks for these
older ones nor any desire to license these thereby agreeing these are
legitimate trademarks. You can't do UP's license for just the modern
trademarks. It's an all or nothing situation. The current situation is not just
affecting Athearn and Lionel. The industry as a whole is trying to do something
about the proliferation of trademarks and all the paperwork and expense
involved. This will likely be the test case to detemine the future of the
fallen flags trademarks. If the UP wins then you can bet other corporations
will likewise follow suit. Some folks think that just paying and passing along
the cost would be the end of it all. However, suppose UP did like UPS and say
no use of any of our trademarks. Then what will we all mode?l Perhaps a generic
"anyname" railroads? Most model manufacturers are very small operations and can
ill afford spending time filling out paperwork and submitting proposals for
every product they want to manufacture.
Me, I think I'll wait and see how this developes and not debate the right and
wrong here. It's not the cut and dry issue some folks make it out to be.
Dave
Kennedy
> Is it possible this was necessary to use all the fallen flags. The
> fed has already denied UP the re-registration on some of the fallen
> flags. Could Lionel and others simply be using the court to say OK you
> can defend your current trademarks but all those that have gone
> undefended for 40/60 years you don't have any control over.
> This would certainly put to bed _all_ RR's (not just UP) claims to
> fallen flags that were never defended.
> UP ends up with a couple of current logos and sayings!
I'm not sure how the UP can sue over a trademark that wasn't granted to
them, so your comment could be what this would be about.
Kennedy
--
-------------------- http://NewsReader.Com/ --------------------
Usenet Newsgroup Service $9.95/Month 30GB
Jim Hill
It's amazing how quickly the usual suspects leap at the chance to share
their dubious wisdom with us lesser mortals.
Adding to the collective misinformation, someone named "cat" opined that:
> The idea that they [UP] can only sue other transportation companies
> is spurious. Their name and trademark is theirs regardless of what it
> appears on.
And in rapid succession, "Will" has told us that:
> Corporate Trademarks are valid for 100 years . . .
> So the only Trademarks that would fit into the P[ublic] D[omain]
> would be those of companies that went out of business before
> 1904 and were not picked up by a new company.
> The ONLY difference between a Trademark and Copyright
> are "What They Protect".
> Once registered, it is yours, "defending" it . . . can be done at anytime,
> the procedure is the same for both.
Every one of those statements is totally and demonstrably false, as any
beginning student of trademark law could tell you. "Will" should have
followed his own advice to "Please, at least open a book on corporate law
(maybe even read it) before you start commenting and making yourself look
foolish".
Trademark law is a complex field, but some of the basic principals are quite
clear:
~ All trademark (or service mark) registrations issued or renewed on or
after November 16, 1989 are for very limited period of time, and need to be
renewed on a regular basis.
~ The trademark applicant must specify the USES to which the mark will be
put (in other words, the type of goods sold or the kind of services to be
rendered). And the trademark is ONLY valid for that use.
~ The owner of a mark owner must file a declaration under oath at the time
of application -- and at regular intervals thereafter -- that the trade or
service mark is actually being used by the owner for the purposes specified
in the application.
~ As "Will" should have figured out by now, the whole purpose of trademark
registration is to identify the source of a product or service -- and to
distinguish the goods or services from those provided by others, so that
there's no confusion as to the identity of the manufacturer or service
provider.
~ A company making an entirely different product, to be sold to a different
group of customers under its own trade name is not in violation of trademark
law.
If you don't believe it, there are plenty of on-line resources for the rules
of trademark registration, including the one provided by the Trademark
Office itself: http://www.uspto.gov/main/trademarks.htm
With those rules in mind . . .
When was the last time you saw a scale model train or decal that was made or
sold by the Union Pacific Railroad?
If you bought an Athearn locomotive decorated for the UP, would you assume
that you were buying it from the railroad?
How many model railroaders do you know who are "confused" as to whether
scale model trains are actually made by the railroads whose name appears on
the side? Or is it more likely that the purchaser will assume that a model
train that comes in a box marked "Lionel" is actually made by the Lionel
corporation?
Until VERY recently, the only use specified by the Union Pacific for its
trademarks was "Providing Transportation of Commodities, Goods and Other
Freight by Railroad and Motor Carrier to Others" and similar phrases. Only
within the past couple of years has the UP filed _NEW_ trademark
applications, claiming to be in the business of making or selling "model
trains", "toy train sets" and the like. And at the moment only ONE of those
applications has been granted by the Trademark Office.
Why should we be concerned?
-- Because it will cost us more, and the UP's licensing scheme doesn't add a
bit of value, accuracy or variety to model trains.
-- Because UP may one day decide to appoint a single exclusive licensee of
all of the 1800 railroad names it claims to own.
-- Because UP may decide that certain fallen-flag railroads should not be
produced in model form.
-- Because some of UP's trademark applications include a LOT more than model
trains. For example, they've claimed the right to license and control any
published depiction of their marks in "non-fiction books relating to history
and transportation, children's activity books, coloring books, magazines
relating to travel, history and transportation, mounted and unmounted
photographs, posters, postcards . . . calendars . . . etc.etc."
-- Because UP is not the only company attempting to control fallen-flag
railroad names and trying to make a buck off them. There's already a
claimant for the exclusive right to use the name "Pacific Electric", and
there are some 60 other railroad names for which trademark applications have
been made by private individuals -- who have no connection whatever to the
"real" railroad.
The Olde Reprobate
Kennedy
> That won't work either. UP claims rights to the combination of Armour
> Yellow and Harbor Mist Gray with scarlet striping in a characteristic
> Union Pacific motif. They can't forbid the use of any of those colors,
> BUT, they can claim rights to the use of them in a recognized motif.
> You would have to force them to sue you on that issue also.
> Coca-Cola, Nike and others do the same thing. You can't use the wave or
> the swoosh regardless of whether or not you put the word Coca-Cola or
> Nike on the product.
> >
> >
> Captain Handbrake
I wonder if CEFX got permission to paint those SD45 carbody leasers in this
scheme. We see them roaming around the CSX system on occasion...
:D
Mark Mathu
news:20040603203817...@mb-m23.aol.com...
> The industry as a whole is trying to do something
> about the proliferation of trademarks and all the paperwork and expense
> involved. This will likely be the test case to detemine the future of the
> fallen flags trademarks.
I am wondering if MRIA will make a statement or take a stance on the lawsuit.
Mark Mathu
news:j_obert-E84407...@newsclstr01.news.prodigy.com...
> Neither side would want a judge deciding what is legal since that can be
> used in other cases
Union Pacific has requested a jury trial.
Captain Coast Line.com
<howl...@YOUKNOWHAT.tir.com> wrote:
>
>I wonder if CEFX got permission to paint those SD45 carbody leasers in this
>scheme. We see them roaming around the CSX system on occasion...
>
>:D
>
>Kennedy
This thing has just started. it will be a while before the chickenshit gets really
heavy, but it is coming.
>
>
Captain Handbrake
Wi...@credit.valley.railway
news:Xns94FDED62B2B9...@194.109.133.29...
>
> Actually, my prototype's products are usually already licensed from the
> railroad that runs them ... so there's not much chance of things changing,
> other than for the better - most of the JR companies (as well as the
> private railroads) seem to rather enjoy the fact their trains being turned
> into high quality models .. even if they're produced overseas :-D
>
I think you have hit on something there JB, you said "high quality models".
That's it, neither Lionel or Athearn can be accused of putting out "high
quality models".
It is not like they are brass locomotives or accurail or branchline quality
rolling stock.
Brian Paul Ehni
"Wi...@Credit.Valley.Railway" <Wi...@Credit.Valley.Railway> wrote:
> "JB/NL" <tsu...@xs4all.nl> wrote in message
> news:Xns94FDED62B2B9...@194.109.133.29...
>>
>> Actually, my prototype's products are usually already licensed from the
>> railroad that runs them ... so there's not much chance of things changing,
>> other than for the better - most of the JR companies (as well as the
>> private railroads) seem to rather enjoy the fact their trains being turned
>> into high quality models .. even if they're produced overseas :-D
>>
>
>
> I think you have hit on something there JB, you said "high quality models".
> That's it, neither Lionel or Athearn can be accused of putting out "high
> quality models".
>
> It is not like they are brass locomotives or accurail or branchline quality
> rolling stock.
You obviously haven't seen the Genesis line yet. I'm not even going to TRY
to defend the current Lionel offerings in HO.
--
Brian Ehni
Rick Jones
> With corporate Trademarks, it is 100 years before it becomes public domain.
>
> I know this because I put out a line of Public Domain movies on DVD. Public
> Domain used to occur 28 years after a work was produced, unless the creator
> applied for an extension, which put it to 50 yeras. The Sonny Bono act of
> the mid-90s extened that to 75 years. Disney is trying to extend it again.
> Right now some films are PD even though they were done in the 1960s, while
> some have been protected for years.
>
> Corporate Trademarks are valid for 100 years, this is why Disney has
> trademarked Mickey Mouse his first toons were made in 1928, and hence are PD
> right now. WB did the same thing with Bugs Bunny, Daffy, Porky and all their
> "stars", they are now trademarks of WB and protected for another 100 years.
> So the only Trademarks that would fit into the PD would be those of
> companies that went out of business before 1904 and were not picked up by a
> new company.
The movies you put out on DVD were covered by copyright law, which
lasts for the terms you quoted above.
As stated in the trademark laws posted on the USPTO web site at:
http://www.uspto.gov/web/offices/tac/tmlaw2.html#_Toc52344084
§2.181 Term of original registrations and renewals.
(a)(1) Subject to the provisions of section 8 of the Act requiring an
affidavit or declaration of continued use or excusable nonuse,
registrations issued or renewed prior to November 16, 1989, whether on
the Principal Register or on the Supplemental Register, remain in force
for twenty years from their date of issue or the date of renewal, and
may be further renewed for periods of ten years, unless previously
cancelled or surrendered.
(2) Subject to the provisions of section 8 of the Act requiring an
affidavit or declaration of continued use or excusable nonuse,
registrations issued or renewed on or after November 16, 1989, whether
on the Principal Register or on the Supplemental Register, remain in
force for ten years from their date of issue or the date of renewal, and
may be further renewed for periods of ten years, unless previously
cancelled or surrendered.
I'm actually surprised to find out that Congress *reduced* the first
term of issue from 20 to 10 years beginning in 1989.
--
Rick Jones
Remove the Extra Dot to e-mail me
The Lake Erie & Oregon Railroad
http://www.geocities.com/seventysixinchesoffun/
Why do we say something is out of whack? What's a whack?
Paul Newhouse
"Edward A. Oates" <nowaye...@unearthlylink.net> writes:
> Athearn et al seemed to have no problem at all licensing Coca-Cola
> and John Deere products.
Perhaps Deere & Coke were more diligent in the protection of their marks?
Paul
--
Working the Rockie Road of the G&PX
Captain Coast Line.com
wrote:
Perhaps Deere and Coca-Cola "granted" a license along with a substantial contribution
to Athearn's coffers to have the toys produced as a means of advertising.
All that is speculation as no one here knows one way or the other.
>
>
Captain Handbrake
John Obert
"Mark Mathu" <ma...@mathu.com> wrote:
In lawsuits the jury is just the first round, you get to keep re biting
the apple in appeal court as long as you can pay the lawyers
The trick if you are the big guy is to have your lawyers out spend the
lawyers the little guy
However like Microsoft or the Strong funds though you want to settle out
of court and seal the documents it limits others from using the court
case and its finding against you and stops the spending of money on
lawyers
DaveW
Actually, I've never seen an entire episode. The neck ties, stained
glass windows part is from a Tom Lehrer song.
Regards,
DAve
Paul K - The CB&Q Guy
> Union Pacific has requested a jury trial.
````````
That was a mistake. What if they get a bunch of old guys for jurors
who had Lionel train sets as kids?! 8^D
Paul - "The CB&Q Guy"
(Happily Modeling 1969 In HO.)
Mark Mathu
news:10buj0o...@corp.supernews.com...
> You folks are aware that part of the UP wording says that the companies
> will have to give UP all tooling etc. if UP disproves of the product.
Please point out where it says that:
http://www.uprr.com/aboutup/licensing/application.shtml
JB/NL
> When Athearn decided to do the CalTrain commuter cars, I got the
> photos for them with permission from Caltrain (access to the yards,
> actual paint blueprints, etc.); they were very cooperative and were
> thrilled that Athearn was going to produce their Baby Bullet cars and
> granted permission to use the design enthusiastically. It would be
> nice it UP were so accommodating, but I guess that's in the past.
That's what I meant -- and it's good to see some US railroads still know
'free advertising' when it comes their way :-D
What you're describing pretty much goes for my prototype (Japan) .. most
RR companies assist the model company with yard access, plans and
schematics, etc .. the results are stunning ...
Too bad greed (and overzealous protection of trademark) has gotten the
better of UP ... we'll see how it all goes; for you guys, I'd hope for the
best, fear the worst, and settle for anything inbetween.
--
Jeroen "JN-Scale" Braamhaar <tsu...@xs4all.nl>
There's no N Scale like Japanese N Scale!
Layout: http://www.xs4all.nl/~tsunami/tokaitetsudou/
JB/NL
news:TuQvc.10568$XY6.1...@read2.cgocable.net:
> "JB/NL" <tsu...@xs4all.nl> wrote in message
> news:Xns94FDED62B2B9...@194.109.133.29...
>>
>> Actually, my prototype's products are usually already licensed from
>> the railroad that runs them ... so there's not much chance of things
>> changing, other than for the better - most of the JR companies (as
>> well as the private railroads) seem to rather enjoy the fact their
>> trains being turned into high quality models .. even if they're
>> produced overseas :-D
>>
>
>
> I think you have hit on something there JB, you said "high quality
> models". That's it, neither Lionel or Athearn can be accused of
> putting out "high quality models".
I can't offer any comment on that, being an N scale modeler, and my chosen
prototype is Japan (specifically, passenger trains).
High quality is relative.
In my prototype, a 'high quality' model has short couplings, interior
lighting, ultra-complex prototypical paint scheme on top of the usual 5-
pole motor, reversible end lighting (white/red), correct light position,
correct body styles, etc. etc. .. so I'm rather spoilt. :-)
What I've seen from Athearn (which amounts to their new N range), it looks
very solid -- Lionel I can't say a word about.