CSX Follows UP Example

Wait for BNSF to throw their hat into the ring?

fl@liner

About BNSF - Licensee Information:

There's a big difference between the UP and CSX methods. UP's agreement called for all manufacturers to submit a production model (not a mock-up) to UP's legal department for approval (meaning that if they every said no, said manufacturer would be in deep doo-doo), and that they wanted either 5% of the model's value or a percentage of the total company's net sales. IIRC, CSX only asks for a flat, low-cost fee covering many models (but they could have changed it). If this remains the case, CSX's policy is fall less onerous than UP's, requiring no new pricing structure and/or accounting policies. Amtrak, BTW, is another issue. They have sold the production rights to the Acela Express to Bachmann only, and all paint schemes Phase V and later were sold to Walthers. If you look, even on Overland boxes for Genesis locos, it says "Copyright Walthers" in small print.

I'm so glad I model the New Haven, where this problem does not exist...

Paul A. Cutler III

Dear folks:

Hmm...if anybody wants to paint equipment for my Sparta Railroad they may go ahead and do so. Freight cars are box car red with 'SPAR' or 'SPARTA' reporting marks and a number in white, and sometimes a white 'S' with a box around it. Start repainting your CSX and UP cars today!

N.B. This is not a pitiful attempt by a poverty-stricken short line at grabbing per diem charges...not at all.

Cordially yours, Gerard P.

Depends on your definition of "low cost" I guess. $.80-1.00 per model, plus manufacturer's overhead for complying with the licensing terms, might be considered rather stiff by other people especially for a low cost plastic kit. That's for runs up to 500 pieces. Over 500 is "to be determined". That's for one trademark. Licensing multiple marks reduces the overall cost per mark.

What happens if you take a plain vehicle and hand paint the R.R. markings on it? You ain't selling the vehicle so you ain't making any money from it. Regards, Bill.

...but you are using their logo. That's where the rub is.

It's like the people who duplicate a CD and give it to their friends. "I'm not making any money by doing that, so it's legal," they will tell you. But... you are depriving the artist of a sale, therefore costing him/her potential revenue.

dlm

That's an interesting question.

| I'm so glad I model the New Haven, where this problem does not exist...

At least until some Metro North lawyer goes, "Hummmm . . . ."

CTucker NY

Nah, it's not M-N. They don't own squat of the New Haven (except the RoW). Remember, in 1969, Penn Central was forced to buy all operating assets of the New Haven...but not the whole shebang. The NH was never merged into the Penn Central (which still exists as American Premium Underwriters). I know for a fact that the NH was still a seperate entity into the 1970's (I have copies of the court documents to prove it), and the rumor is that the NH's corporation had dwindled down to a single lawyer's office the midwest by the 1980's, handling the long term leases and any other loose strings still around. It's certainly possible that the NH corporation was simply dissolved as the issues were wrapped up, meaning that all NH logos are now in the public domain. I also know that the NHRHTA (est. 1961) had received permission from the NH corporation to use any and all NH logos for their own use (according to the Pres. & CEO of the NHRHTA), so I'm not too worried about it.

Paul A. Cutler III

with the 'licensed' heralds on them? Are you then liable to pay a license fee to the R.R.?< I understand if any of them are UP you do.

It's a pity that the MR industry is so pitifully poor, otherwise in court they probably could have won.

As I recall from my courses in business law (oh so long ago), a general rule of copyright/trademark law is that a copyright that is not defended against long term open and notorious use can not be enforced at a later date.

Since the logo designs of the various RR lines have been used openly for decades by the MR industry without issue, it is highly unlikely that any court would side with the RR's against the model makers and would agree that an implied license was in place.

Unless, of course, that there was some hidden agreement in place over all these years that allowed for the current changes to license.

| It's a pity that the MR industry is so pitifully poor, otherwise in court | they probably could have won.

Atlas, Athearn, Walthers and so forth are not all that small. And have lawyers. You can bet they didn't look to UseNet for their legal advice. And, we don't know what terms they /really/ negotiated. You can bet its not the terms spelled out on UP's site three years ago when all this started.

| As I recall from my courses in business law (oh so long ago), a general rule | of copyright/trademark law is that a copyright that is not defended against | long term open and notorious use can not be enforced at a later date.

Oh so long ago, that was so. Congress changed all that in 2000 giving perpetual ownership to "famous" corporations. There isn't any amount of UseNet harrumphing that will take precedence over an act of Congress.

CTucker NY

Er, uh, as in the congress of the cow? (in the Kama Sutra, I think). Or, in keeping with the Bush-Delay axis, the congress with the goat.

Well, let's see . . . at last report, the Union Pacific claimed to "own" or "control" the rights to the names, slogans and logos of some 1800 predecessor "fallen-flag" railroads -- and wants licensing fees for the use of every one of them.

How many of those 1800 "famous" railroads can YOU name?

JR Hill

Jim, 'fess up: Where did you see that report that claims 1800 predecessor railroads?

They've lost every fallen-flag case they have tried to claim.

You are referring to the 'Anti-Dilution Act' or whatever it is called, I think. I think this act does deserve whatever comparisons to the bovine or capelline world Mr. Caple wishes to make (and boy, did I ever have to dig for that second Latinism). I think it is a doomed law anyway, because it is too obviously a violation of our freedom of speech, and because guaranteeing superior protection to something 'famous' is absurd. Still, if its purpose is to prevent the "lessening of the capacity of a famous mark to identify and distinguish goods or services..." couldn't it be proved that the decoration of railroad models with UP or CSX graphics helped STRENGTHEN this capacity of the trademark? I bet it could.

Cordially yours, Gerard P.

What about the MKT. Recent models of Katy equipment are listed as UP licensed products? Or is it just cheaper to "pay UP" than to test a fallen flag claim in court? Bruce