The current Trains photo spread of the Norfolk Southern heritage fleet brought this question to mind. Many of these heritage paint jobs have a somewhat selfish motivation. They are requested by legal departments to maintain the active status of registered trademarks. If the railroads cease to use the heritage name and graphics, they lose their trademark enforcement rights.

Since Conrail was split between CSX and NS, who owns the trademarks for PRR and NYC?

The internet is your friend:

http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4002:2u622v.1.1

You can see that several non-RR individuals and entities have attempted to file these trademarks, including the NYC.

As a side note, the law doesn't require you paint a locomotive to still use a trademark, you simply have to use it in some form in commerce. Heck, CSX could sell "L&N" items in its web store and that would qualify. If you do not use it in commerce, and have no intent on using it again, then it is considered dead. The onus is on the original trademark holder to show it is actively used, or the intent is there.

The other way a trademark can become inactive is when the mark turns into general use, like Styrofoam, etc.

Where did you read that legal departments were behind heritage schemes? I've known that this a common railfan "conspiracy theory" but haven't seen anything concrete. After understanding the law, this seems less likely.

It was a Trains news item way back when UP started heritage painting.

Also, many railroads, starting with UP, starting suing model train makers for trademark infringement over heritage road names and paintwork on model trains.

p.s. back in the day I had a small business with some trademarks, registered at some expense, and my legal advisers gave me similar advice about enforcing them. "Use them or lose them!"

There is a requirement to file with the trademark office a declaration of continued use between the fifth and sixth year of registration, and every 10 years thereafter. You also have an a right and obligation to challenge anyone using a mark similar to yours to maintain the integrity of your mark.

I have appropriated a formerly abandoned mark that was once the logo of a now defunct steel company. It cost me $275 to file the paperwork, but now the mark is our property and we have sole rights to its use.

From a TESS search:
It appears that the New York Central System oval logo is dead.
CSX abandoned "New York Central Lines" and "New York Central Railroad Company" word marks in 2000.
The PRR Keystone is also dead.

But is there such a thing as public domain for trademarks? If the PRR keystone as a trademark is dead and any number of businesses are using it in commerce by selling memorabilia, models, etc. without asserting any trademark claim on it, registered or otherwise, could one of them or some other party make such an assertion and block the others from using it? Or would the others just say, hey we have been using it for 25 years...go away...and any actions would be quickly dismissed? Didn't something like that already happen?

Steve

Sure. Just try to trademark the word aspirin, still I believe a trademark owned by Bayer in Canada, lost to the public domain in the US decades ago.

I seem to recall fifteen or twenty years ago someone incorporated in Illinois as the "Pennsylvania Railroad Co." and then tried to register all the old P Company marks, with the obvious intent to shake down the model manufacturers. Thankfully, the USPTO declined to register them.

Bayer lost its intellectual property in the U.S. because it was a German company in WW II. It retained its property in other countries, surprisingly even in British countries. So "aspirin" is generic here, but a trade drug in other countries.

I was also looking if there was an owner for the Penn central logos so I emailed American Financial Group, Inc. and got this reply. "Dear Mr. de la Barre – This email is in response to your email regarding Penn Central Railroad and Pennsylvania Railroad logos. American Premier Underwriters, Inc. is the successor to both of these entities and continues to hold ownership in many former railroad assets included all copyrighted material. APU is a wholly owned subsidiary of American Financial Group, Inc.



Jay Gohman"

Now then who owns the New Haven logo?

I recall that one of Metro-North Commuter RR's objections to painting any Connecticut Department of Transportation FL-9 locomotives in the Orange/Black/White New Haven paint scheme was that the estate of the bankrupt New Haven RR still owned the name and design, PennCentral not having acquired the entire carcass. So, ConDoT bought the rights from the bankruptcy trustee in return for forgiveness of some unpaid state taxes.

You are going about this wrong. Ask any legal department what they own, and they'll tell you they own it, and everything else, too. The real test is how much money you want to spend in court.

And, you can go to the trouble to register a trademark, but when Shyster Ltd. uses it without authorization, it again boils down to how much money you want to spend in court.

All the foamers want the answer to be cut and dried... but it's not, and trademark law is still evolving. The original intent of the law was to allow a manufacturer to protect the reputation of his product, and the trademark, in itself, had no value unless associated with that product. Products were divided into different classes, and the mark was reserved for use only in that class the product fell into. It was possible for the same name to be used on products of different classes by totally unrelated companies.

All that began to change with a pair of landmark court cases in the mid seventies, both brought by professional sports organizations that wanted a cut of the profits all the after market hats and mugs and trinkets were bringing. They argued, successfully, that the intangible, the name, had value of itself, and that value belonged to them. Ever since, more and more companies are viewing their trademarks as a profit center.

The good news is most of the traditional railroad marks were very poorly protected in earlier years, and so the railroads claims of exclusive ownership may not be valid.

The bad news is the legal departments are going to act like they are valid, and no one has the resources to challenge them.