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  • News Item In The August Model Railroader

  • Discussion related to everything about model railroading, from layout design and planning, to reviews of related model tools and equipment. Discussion includes O, S, HO, N and Z, as well as narrow gauge topics. Also includes discussion of traditional "toy train" and "collector" topics such as Lionel, American Flyer, Marx, and others. Also includes discussion of outdoor garden railways and live steamers.
Discussion related to everything about model railroading, from layout design and planning, to reviews of related model tools and equipment. Discussion includes O, S, HO, N and Z, as well as narrow gauge topics. Also includes discussion of traditional "toy train" and "collector" topics such as Lionel, American Flyer, Marx, and others. Also includes discussion of outdoor garden railways and live steamers.

Moderators: 3rdrail, stilson4283, Otto Vondrak

 #33143  by jmp883
 
I just received my August issue of MR and this news story got my attention rather quickly. Lionel and Athearn are being sued by the Union Pacific Railroad for various trademark violations. UP has publicly stated that it is going after those who use their logos without their permission.

I fully understand that a trademark is a registered, licensed logo that represents a corporation or other similar entity and that the owners of that trademark don't want to be misrepresented by the misuse of that trademark or have others make money from using their trademark without permission. That being said, I still feel that UP is slightly over-reacting to this. The MR article states that both companies are being sued for NUMEROUS trademark violations. Now, correct me if I'm wrong but I've heard through the grapevine that both Athearn and Lionel have been in the model railroad business for a couple of years now and I'm pretty sure they only use railroad logos on the model trains that they sell to model railroaders. THIS IS MISREPRESENTATION OF THE UP LOGO? I know that, legally, it is but it's not like somebody is painting a real locomotive with UP's logo and then pretending to be a UP train (or worse). These are 2 of the biggest model companies in the country making models of trains for our enjoyment. I fail to see how UP sees this as misrepresentation or a trademark violation that will hurt their corporate image. Why can't all involved sit down and work out a licensing agreement? I'm sure Athearn and Lionel have licensing agreements with other railroads.

The part of this story that has me worried is that, according to the article, UP wants a jury trial. You can bet that there won't be any model railroaders on that jury due to possible conflict of interest claims. Knowing how thorough most attorneys are in their research, I think that'll be a pretty safe bet to make. I've been a modeler for most of my 39 years and most people, when I tell them about my hobby, just look at me kind of funny and say 'Oh, model railroader is just the adult way of saying you still play with trains'. A jury of people with that attitude won't be in the best interests of Athearn and Lionel, that's for sure. And, since they aren't modelers, they won't necessarily know or understand that Athearn and Lionel are two of the biggest and most respected model companies in the hobby.

What will the consequences be? MR doesn't address that and we won't know until the jury decides. Will it put both companies out of business? No, probably not. Both companies may be barred from releasing any UP models in the future, they will most likely be fined (and since both companies are not corporate giants like UP, those fines could really hurt them) and because of those fines they may have to raise their prices to the consumer in order to recoup their legal fees, etc.

Maybe I'm reading too much into this, and UP absolutely has every right to protect its trademarked images and logos. It just seems to me that UP is taking too strong a stand with 2 of the giants in the model railroad industry.

Your thoughts........

Joe P :D
Long Live The EL (and Athearn, Lionel, and UP)
www.geocities.com/jmpwpd29

 #33164  by jwb1323
 
I would say that MR is considerably behind the times, since this story has been around for a while. I was talking to my local hobby shop owner, who also owns a brass HO import business (and has been quoted for his opinions on this by some newspapers). He says the suit comes from before Horizon Hobbies bought Athearn, and he's not sure if Athearn/Horizon will continue with the suit. Also, Lionel lost a VERY big suit based on alleged copying of someone else's designs for the O N&W Class A, and he doesn't know if Lionel will continue with the suit on that basis. (This is all speculation, of course). However, he says that he's used UP logos in his brass imports, but has no intention, based on advice from his attorney, of paying UP a license fee for, say, the logos on a City of Los Angeles E2. UP hasn't sued him, but he says he's going to stand up in court if it does.

The legal principles are pretty plain. You must assert your rights to protect them. The bottom line is that Athearn has been using UP logos since the company started in 1946. UP is only complaining in 2004, almost 60 years later. There's a fair chance that a bad case like that would not get to trial, jury or otherwise.

UP could, like Amtrak, start to say "We are now going to protect and license our 'Building America'" trademark (as Amtrak has done with its Phase V scheme, but not the earlier ones). That could be a different case, but even there, there may be room for dispute. If I paint a model loco for Amtrak, I'm not confusing anyone that they can get on my model train and go to Minneapolis. If I ran the John Bruce Dinner Train in full scale from Podunk to West Podunk and started painting it for Amtrak, that would be a VERY different proposition and definite trademark infringement, because customers would certainly be confused and think I would be running my dinner train to Amtrak's very high standards. But that will not happen with an HO or N or G model. So it's questionable even there if Amtrak can "license" their image.

This will be interesting. From what I hear, there is a minority on UP's Board of Directors that is unhappy with Dick Davidson (as they probably should be), and the image lawsuit against Lionel and Athearn is part of their unhappiness. But there will have to be some bigger disaster on UP's part to bring changes.

 #33182  by Xplorer2000
 
One of the problems here is that U.P. is trying to lay claim to the logo/image rights of EVERY railroad , that they, or any predecessor company , have ever absorbed. SP, Cotton Belt, DRGW, MP, CNW, etc... they UP claims that they ALL belong to them, and therefore, no one has a right to manufacture models so painted, without the appropriate payoff...errr...."licensing fee"....Yeah, THAT's it!!! (LOL!!) Supposedly, this screwloose scheme originates from the office of no less than U.P. President Dick Davidson himself, which is somehow disturbing.
The U.P. is literally on the verge of service catastrophe, and the head office is more worried about the nickles & dimes they might be missing by licensing these logos. Even better, they are reportedly wasting time, money and effort, by dragging in cars, and painting them up in these "Fallen Flag" paint schemes , to bolster their claim in court that these colors are still in regular every day service, and thereby protected. If we were'nt talking about one of The major corporations in the country, it'd almost be laughable. As it is , its just pitiful.....

 #33210  by jwb1323
 
I browsed the MR in question at my LHS this morning. One thing that puzzles me is that the suit was filed some time ago. Only now is MR getting to it -- and they're publishing UP's position at length, with all kinds of fierce allegations against Lionel and Athearn, both big Kalmbach accounts. Don't know if UP is a Kalmbach account or not. Is UP promising to take out an ad on the back cover of MR or Trains every month now to get this favorable treatment?

From a journalistic standpoint, this puzzles me. MR is a hobby mag, which means that they are entitled to give their advertisers some preference in how they cover things. From the piece in MR over the UP suit, it looks like both Lionel and Athearn, on the advice of their attorneys, have elected not to comment on the suit. Good idea, you don't know what use might be made of an innocent-sounding public statement later in court. UP, having filed the suit, is saying all kinds of awful things about Lionel and Athearn in their press release. MR is going along with it -- even though the news item is signed by Dick Christianson, it looks to have come from UP's law and PR departments without any edit.

So the initial poster here read it and got upset, as well he might. MR is carrying water for UP against its own advertisers. Sounds like a corporate dummies convention is in order -- I'd be pretty ticked at Kalmbach for how they handled this if I were either Athearn or Lionel.

By the way, my wife is an attorney, and I asked her about the possibility of a jury trial. Basically both sides have a say, but if UP wants it, they will probably get it. However, it's not necessarily a bad thing to have model railroaders off the jury. Ordinary people are probably predisposed to give a company like Lionel and a relatively less well off company like Athearn the benefit of the doubt. A model railroader on a jury could be a loose cannon, a self-appointed "expert" giving jurors incorrect impressions, or turning the jurors off to the hobby if he's a big enough know-it-all. Better to have the attorneys put the facts out in front of an impartial jury, my wife says.