UP Sues Athearn and Lionel over Trademark infringement

[Otto Vondrak]

WANF- You can debate and have all the dissenting opinion all you like, but your challenge to the *legal issue* is flawed in this case.

-otto-

[walt]

This "debate" is interesting, in spite of the contention which has developed. However the bottom line here will simply be the legal questions: (1) Does UP have the right to require a license fee from those railroad model manufacturers who wish to place the UP logo on the model equipment which they manufacture (2) Is that right enforceable by means of the lawsuit which has been filed and (3) If the answer to Nos. 1 & 2 is yes, what remedy is the appropriate remedy to be granted by the court. If the answer to either No.1 or No. 2, is no, then the case is over.The relative wisdom of UP's bringing the action, or lack thereof, will be immaterial.

[snowplough]

WANF-11, you seem to have a problem debugging your own logic, so let me point out one glaring bug.

Because the police don't enforce J-walking rules does not mean the law does not exist. When you cross the street not using a cross walk, you're still breaking the law.

The fact of the matter is that, as others have already pointed out, a copyright is enforceable only at the level at which it has been defended for the history of the copyright. That's quite a bit different from jay walking: the illegality of jay walking doesn't change with the history of its enforcement (as Barney Fife correctly argued in one episode of the Andy Griffith Show).

So before you accuse everyone of arguing against you on the basis of how they wish the law worked, you need to take another look at your own reasoning.


snowplough

[walt]

Though most of us ( yours truly included) have analysed this "case" as a trademark case (it is not a copyright case) with the limitations described here, it is somewhat possible that it may be seen as simply a corporate property case. If this becomes its character, it wouldn't matter what UP had done, or declined to do in the past, UP would retain the right to control over its property. This is one of the problems faced when a lawsuit is filed----what seems obvious ( that this is a trademark case) may turn out to be something else altogether; nothing is ever certain if or when a case actually goes to trial ------ stay tuned

[JDFX]

Yes WANF, I am still here.

Don't worry folks, we lock horns from time to time, but it never becomes personal.

The one legal question I have regardless of what happens with the current UP Shield, is what about the fallen flags?

Although the Erie Lackawanna is my personal favorite, I hold penchants for both the Chicago Great Western, and the Chicago Northwestern...

The CGW has been long gone for over 30 years, and the CNW for almost 10?

Why should I have to pay Union Pacific a "royalty fee" for use of a C.G.W. logo that was twice removed prior to their ownership?

Also, if you look at some of the petitions to the court for trademark protection, some of the logos brought to light are from railroads I never knew even existed, that fell defunct over 80 years ago..

YES, 80 years ago folks, companies that were merged into other companies, which were eventually merged into the C.G.W.

I'd suggest that everyone do some research and see some of the railroad names and logos they are trying to get trademark protection for. You'd be suprised at the list, and even more suprised that some of these railroads never saw the coming of the diesel age.

You can sit there and tell me till the cows come home that UP has that right, and perhaps in our litigious society nowadays, they do, but I cannot see any judge, allowing UP to protect a trademark, from some railroad that went under back in 1920, and is esentually 5 times removed from U.P.

Its actions like this that prove to me its not about trademark protection, its about corporate greed, its about how much money they can skim from the model train market, to cover their otherwise failing company.

I will say this, and I am far from a religious person, (although I am starting to be) but these people who run Union Pacific right now, are going to have alot of explaining to do before God himself when the time comes.

There is nothing wrong with making a legitimate dollar, or two, but this is outright greed. Especially since it seems to be trendy nowadays to write yourself a hefty retirement check while bankrupting a company...

as was said in the Gospel accorinding to Mark 10:25

"It is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God."

I somehow doubt that those of the B.O.D. have a conscience though.

[thrdkilr]

WANF,
Your not a martyr and your logic is flawed. Next you'll be telling me reparations are legitimate because its not such a bizarre concept in todays legal "Alice in Wonderland" world. Time does matter, theres got to be a line drawn somewhere.
It sounds like your really mad at the country's response to terrorism. You don't want to fight that fight so you are using the UP debate to "kick the dog" as it were. If you want to be a martyr, go and be a martyr....

[jwb1323]

It's worth pointing out that the UP itself -- let's not worry about the predecessors -- supplied lettering information to the UPHS and other publishers of hobby books in the 1980s. Terry Metcalfe's book on UP freight cars, for instance, has copies of official UP lettering diagrams. I believe that at the time it was UP's policy to provide this info without charge via people like George Cockle on their payroll, presumably as a PR benefit. No restriction was placed on this info in their books, so presumably any decal manufacturer or hobby supplier could use such info to make accurate UP trademarks on their model equipment free of charge.

Remember, the first question a cop asks if you report your car stolen is "did you tell anyone they could use your car?"

It seems to me that UP would be safest in clearly announcing a policy "from here on in, as of X date, any new trademarks we implement will be subject to a license fee". But I think past experience shows that not only did UP tacitly allow their trademark to be copied (pretty much from the time scale modeling got started), but in clearly demonstrable cases, they actually assisted with the copying.

[Paul Cutler III]

It's not just the money, WANF. It's the control.

Do you really want RR's to control this hobby? If all of this goes forward uncontested, that is exactly what will happen.

Amtrak already has exclusive rights deals with Bachmann (Acela Express) and Walthers (every thing else post-phase IV), but at least Amtrak allows model manufacturers continue to produce older Amtrak paint schemes.

In the original agreement posted by UP, they made no bones about what they wanted. They stated that they must have a production model in hand before they would give approval, & that pre-production models were not acceptable. Considering that tooling costs tens of thousands of dollars, if UP ever said no, it would be potentially devestating to a model RR company.

Also, if the manufacuterer was to cease production of the item for any reason, all molds and tooling would have to be given to UP.

It is not so far fetched that UP could enter into exclusive deals like Amtrak did, and pick someone like Bachmann or worse. Is that what you want?

And what if EMD and GE get into this? Did you know that, according to "Model Retailer" magazine, in the model car kit hobby, that licensing costs are just as high as tooling costs? Which is why you continue to see old kits in that hobby vs. new car models. Why should they pay all that extra money to Ford, GM, etc., if they can just run older models that are already paid off?

And spare me the "law is the law" nonsense. Laws are made and changed all the time, and not by a bunch of faceless robots, but by the citizens of this country.

I will never understand those like you that preach capitulation before the first round of lawsuits have even been settled...

[Otto Vondrak]

Ok, I'm going to cool off this conversation for a while. I think we have beat this topic to death... all five pages worth. I'll reopen it in a week or two if people have some other unique perspectives to add (and not mee-too posts).

-otto-