Hard to believe this is the same company that still operates 3985 and once made the movie "Last of the Giants", and hard to believe they would let such corporate idiots speak for them in public.

http://www.omaha.com/index.php?u_np=0&u_pg=46&u_sid=1112474
ryarger@rypn.org

My favorite line out of the article is the assertion that HO and O scale trains with the UP logo could "confuse or deceive" customers." Last time I checked, the locomotives pulling the trains on the NS mainline near where I live are real 1:1 scale.

I can understand how UP wants to protect its corporate logo, but I do have a problem with them going after model makers. Just think of the free publicity that UP and any other railroads have gotten from their logos and paint schemes being used on the multitude of toy trains. For years I was a Burlington Northern fan because my first train set had a BN locomotive. It just seems as if UP may do themselves more damage with this. In the end, it comes down to $$ as the article conceedes. UP wants a slice of the money that their image generates.

Question for trainlawyer or anyone else more familiar with copyright issues. What would such a liscense agreement mean for museums who have historic equipment painted. I noticed that CSX's form posted on this forum was designed for "for profit" use only. Any ideas?

david.wilkins@bardstown.com

I think that the issue there would focus mainly on what constitutes fair use of the trademark. Certainly they could attempt to require museums or other organizations to pay a licensing fee for use of their trademarks. However, an action like that could very easily turn into a major public relations debacle. That said, I doubt that they would have a burning desire to take that issue on, at least for now.

awalker1829@yahoo.com

The UP suit is being brought, as I understand it, because some companies have played by the rules and compensated UP. Others, according to the suit, are alledged to have not done so.

Therefore, to protect their trademark, and the vaule of the agreement with those playing nice, UP has to enforce thier policy.

Anyone who is a Mike Watt fan probably remembers the music video he shot for his Ball-Hog or Tugboat album in which he played a rather loaded railroader in a parody not all that flattering to railroaders. UP went after the record company, not to protect the image of the railroader, but that of the company's logo... Watt's video was shot in a UP Centennial.

See link...

Eventually, we aired an edited version at MTV which had the logo removed, but for anyone with an ounce of rail savvy, the Armour Yellow and Harbor Mist gray loco was a little but of a giveaway.


http://www.rcfp.org/news/1996/0701i.html

> Question for trainlawyer or anyone else more
> familiar with copyright issues. What would
> such a liscense agreement mean for museums
> who have historic equipment painted.

I'm no lawyer, but Museums are not excluded from the fray. They are being asked to apply for and get a license as well. I do not know the cost but think it is 'nominal' for most non profits. Of course if you have 50 cars (or 450) and all came from a different background, just think. Once UP wins and all the railroads jump on this bandwagon, it might be a full time job to get these and renew them every year.

Bob Kutella


68trolley@comcast.net

> I'm no lawyer, but Museums are not excluded
> from the fray. They are being asked to apply
> for and get a license as well. I do not know
> the cost but think it is 'nominal' for most
> non profits. Of course if you have 50 cars
> (or 450) and all came from a different
> background, just think. Once UP wins and all
> the railroads jump on this bandwagon, it
> might be a full time job to get these and
> renew them every year.

> Bob Kutella

The biggest problem is that the UP (without the periods, so I don't get sued for trademark infringement) is claiming the historic marks of ALL the predecessor roads they absorbed, even though it is arguable that they are currently using the marks in trade. If they are able to prevail and perfect their claim to these historic marks, they would then be in a position to simply refuse to grant permission for their use. Given their treatment of the predecessor road's image after they took over, I don't think that this is so far-fetched. I've heard that the Cumbres & Toltec has had some problems with using the "flying Rio Grande" on their equipment, but don't have any first hand knowledge. Perhaps someone who does can report what the situation is with CATS, if they can.

What is really needed is a modification of the trademark law to more closely restrict it to marks currently in use in trade as was the original intention, or to specifically exempt historic preservation. Marketable creations such as Mickey Mouse are adequately protected under the Copyright laws. Since this would require an act of Congress, I don't see any quick relief.

Dennis Storzek



dstorzek@elnet.com

While I certainly understand UP's stance in the MTV/drunken engineer situation, I've never seen that model manufacturers or museums did anything to denigrate UP's good name, in fact their use of the company's logo was good free advertising. And I can't believe they are letting these idiot corporate bean counters shoot their mouths to get them so much bad press, just to make a couple of bucks from a kid's HO train.

ryarger@rypn.org

>If the stories are true that Lionel has in their poessesion a letter from UP from the late1940-50's era allowing use of the emblem one wonders how this might color any current filing UP would make.

I want to know what the Athearn/Lionel side to this dispute is.

UP is suing because they managed to extort other makers of models and people who sell the UP logo, but Athearn and Lionel, going on a 50+ year tradition of model makers using contemporary railroad logos, decided not to cave.

Of course, the suit is for the "We Build America" logo, but if they are sucessful, who is next? What about the MP Buzzsaw herald, the SP sunset route logo, flying lettering?

Bob is right that somepeople at UP corporate convinced others in power that they could increase their revenues by charging to use the logos in areas where the railroad hadn't before.

It reminds me of when I read a history of Lionel trains several years ago. It talked about how the Lionel F3 in the Santa Fe Warbonnet scheme increased the popularity of the railroad, and gave the company a lot of free publicity. As a goodwill gesture, Lionel gave the Santa Fe a price break when the company bout the F3, which the company used as giveaways, and promo items. In the end, Lionel developed a hit that still remains an icon of toy trains, and Santa Fe got a bunch of free publicity.

david.wilkins@bardstown.com

I agree with your premise as it relates to the entire process, but now the process is in place, non-compliance suits should not be a shock.

I am against the policy as a whole, but I cannot fault UP for protecting it's decision. That's what I meant by "fair" which I wasn't clear on. The policy is unfair IMHO, but enforcing the policy is fair to those who have complied.

> UP is suing because they managed to extort
> other makers of models and people who sell
> the UP logo, but Athearn and Lionel, going
> on a 50+ year tradition of model makers
> using contemporary railroad logos, decided
> not to cave.

> Of course, the suit is for the "We
> Build America" logo, but if they are
> sucessful, who is next? What about the MP
> Buzzsaw herald, the SP sunset route logo,
> flying lettering?

> Bob is right that somepeople at UP corporate
> convinced others in power that they could
> increase their revenues by charging to use
> the logos in areas where the railroad hadn't
> before.

> It reminds me of when I read a history of
> Lionel trains several years ago. It talked
> about how the Lionel F3 in the Santa Fe
> Warbonnet scheme increased the popularity of
> the railroad, and gave the company a lot of
> free publicity. As a goodwill gesture,
> Lionel gave the Santa Fe a price break when
> the company bout the F3, which the company
> used as giveaways, and promo items. In the
> end, Lionel developed a hit that still
> remains an icon of toy trains, and Santa Fe
> got a bunch of free publicity.


trains@robertjohndavis.com

> I want to know what the Athearn/Lionel side
> to this dispute is.

I found a thread in rec.railroads about this; apparently Athearn et al. have been around this before with the Chessie cat. I'm guessing that the big issue this time is the claim to ownership of all the fallen flags.

I have some vague recollection that some railroad gave the fallen flag heralds etc. to the corresponding historical society.


whitby@SPAMLESSerols.com

The issue concerning fallen flags is a pretty complex one, involving both trademark and copyright law. Generally speaking, when one railroad acquires another, it assumes all legal rights and controls of the trademarks of the latter. Thus the corporate trademark of the fallen flag company is property of the railroad and they can use fees, etc. to regulate the usage of the fallen flag's trademarks (for this instance, logos).

On the other hand, certain items such as publicity photographs or historical images that clearly identify the fallen flag, but do not incorporate a protected trademark themselves would most likely be protected under copyright law. Images or works created and copyrighted before the present cutoff date (1923 at the moment, if I remember correctly) are of public domain and successor corporations cannot regulate their use.

I had to deal with this issue when composing my railroad history of Chattanooga, "Railroads of Chattanooga". Most of the images used came from private collections, the owners of which I knew. However, I desired to use a couple of Southern Railway advertisements from the 1950s and a 1930's Southern Railway Engineering Department map. The map came from the collection of the TVRM and the ads from my own collection. I submitted a request for permission to make one time use of items listed, and included copies of each item. I very quickly received a written response from Norfolk Southern to the effect that they had no objection to the use of the material and granted authority for a one time use. My expense? Only the time spent in contact with NS and two complimentary copies.

awalker1829@yahoo.com

> While I certainly understand UP's stance in
> the MTV/drunken engineer situation, I've
> never seen that model manufacturers or
> museums did anything to denigrate UP's good
> name, in fact their use of the company's
> logo was good free advertising. And I can't
> believe they are letting these idiot
> corporate bean counters shoot their mouths
> to get them so much bad press, just to make
> a couple of bucks from a kid's HO train.

If you don't protect your logo, trademark, etc. under all circumstances, then you cannot protect your image in a "MTV/drunken engineer" situation. The way our system has been made to work, you have to work at protecting your rights and interests.

Brian Norden

What the railfans and modelers don't know, is that U.P. is only asking 3% of the MSRP. This has never been conveyed to the public by the model manufacturers! I wonder why ? That's $ 1.50 on a $ 50.00 dollar model. Do you really think that the model manufacturers want you to know this, NO ! If they could get away with it, they would up the price 15% claim it was all licensing costs and pocket the extra 12 % profit. Is a serious modeler really going to baulk at an extra $ 6.00 on a $ 200.00 model, is the extra $6.00 bucks a make or break sales point in that priced catagory of modeling. And at the "toy train " kids level it's the difference of the price of two candy bars! I think not.

Also there is the issue of product liability and having control over what product , type, quantity, danger to public , image , quality etc....

And finally, Lionel takes their name logo licensing and puts it on products that also have U.P. and other railroads logos and images and sells it to third party collectable and souvenier companies unrelated to the modeling industry. Some of those companies are in the the 3 billion net a year range in profits. I say go UP ! I'll pay the extra 3% If the representation of my company was being sold and the licensing revenue was going to a third party for doing nothing I'de have them in court also. Lionel is not doing anybody any favors here they are making money of the backs of someone else. And we are not talking penny anty dollars here.

Further more if anybody actually went out there and looked at U.P.'s licensing program they would find that Any museum owning U.P.or fallen flag equipment only needs to apply and say" this is what we are usiing the logos for, these are the items that we want to produce to help the museum " And approval hapens and there are no fees. U.P. wants to help the museums that have saved historical equipment. They will not let you logo items unrelated to railroading and items that are unsafe , unacceptable socially or in general bad taste.

And lastly people seem to accept the fact that it is acceptable for Coke , John Deere , GM , Nascar , and any pro sports team , etc............. to license thier names and have control over what product is produced and railroads don't. What a crock, U.P. is asking a pittance of what anybody else is in licensing fees , they also realize that thier market is smaller and what they ask is fair and just.

Think about what the twisted media stories would be when " Skeevey Brothers Model Trains L.L.C." does thier Holiday commemrative UP Cenntenial Train sets and little Johnny and his two other siblings die in the resulting fire Christmas Eve, because SBMT L.L.C. made the sets with the cheapest parts they could find. And SBMT LLC. folds up tent over night and disappears, ( because LLC's ( Limited Liability Company ) can do that, the wording on the box alone could drag the deep pockets into it just because it implies they authorized the production of the product.

Headline:

Boy dies after UP train set burns him alive ; UP fights punitive damages award in court.

The only thing UP HAS done wrong in all of this.

Not voacally stating how resonable their licensing is compared to others and make the general public aware of how much they pay additional for a sports team logoeed item or a coka Cola item or a nascar model.

As a card-carrying member of the public, I'd say that I already "knew" that-- heck, if the licensing fee were a substantial part of the cost, we would already be seeing it in the price of coffee mugs.

My sense is that we're seeing the "Mickey Mouse Copyright Effect". Disney has to keep getting the copyright period extended; railroads merely attempt to invoke trademark on the symbols of railroads they no longer operate. My credulity does not survive an attempt to persuade me that CSX has any claim to income from a NYC car herald, for instance.

I'm not all that convinced by comparisons between UP and Lionel. I might be more convinced if we were talking about Athearn, if only because last time I checked my kid could afford to buy an Athearn kit.



whitby@SPAMLESSerols.com