Latest UP madness

Mark Mathu wrote: >

It's no worse than the arrant nonsense and trolling from Jerry. And Steve can spell, and punctuate. If were paying $125p/h for a putative consultant, I'd demand he be literate, at the very least.

Relevance???

What's the matter Steve, can't handle the truth. All I am saying is that it is here to stay. You will have either get used to it or not buy. Choice is yours. Jerry

I love all the so called legal experts we have here. Don't you think UP has this well in hand. Jerry

Whatever Stevie boy, you are still going to pay it. Go UP!!!!!! Jerry

in article zT1Nb.7532$ snipped-for-privacy@newsread1.news.atl.earthlink.net, Jeff Williams at snipped-for-privacy@hotmail.com wrote on 1/13/04 6:33 PM:

What large copyright holders depend upon is the cost of ANY litigation at all. With lawyers at about $450/hr, how long does it take for any forseeable profit to vanish. And if you are granted "fair use" (or other rights) by the court or jury, you still don't usually get to sue for your legal costs as long as the defendant (this case, UP) has a reasonable case. You haven't lost any $$$ yet.

It's sort of the reverse of the "little guy" suing a large corporation over product liability or some other claim: the damages (real and compensatory) could be huge even if not particularly warranted, so large companies settle up out of court, the lawyers get 30% of the fee and the plaintiffs get a coupon for more software.

Ed.

When Rathburne, Jerry, and Steve decide to have a flame war, can you at least change the topic line? I'd like to read comments regarding UP and their copyright / trademark policies, but they seem to get buried in the "you're a fascist / no I'm not" battle.

I've change it here, so you folks can battle it out and I can easily skip it. Feel free to flame me, too, in this new thread which I can not read more easily.

Ed.

in article snipped-for-privacy@posting.google.com, Jerry at snipped-for-privacy@yahoo.com wrote on 1/13/04 7:43 PM:

So, who are you?

YOur arm band is to tight. It is cutting off blood flow to the head.

Here is some general information on fair use of trademarks. I'm not a lawyer, but I think the publisher may be over reacting. You are putting together a historical work. Maybe a disclaimer that UP does not endorse the book is in order, but censoring all references to the UP sounds absurd. Your conclusion my differ:

An excerpt from the Web site of Cowan, Liebowitz & Latman

Another key statutory fair use case, WCVB-TV v. Boston Athletic Association, 926 F.2d 42 (1st Cir. 1991), involved the use of the registered trademark BOSTON MARATHON by a television station in connection with its coverage of the event. This case highlights the importance of context in a fair use determination. Without allowing others to use the term BOSTON MARATHON, it would be virtually impossible to describe the Boston Marathon -- one could hardly call it "the 26 point 2 mile race run in Boston once a year." The First Circuit found that the fair use defense was properly asserted, reasoning that the trademark was used primarily in a descriptive manner. Because of the "timing, meaning, context, intent, and surrounding circumstances," there was no likelihood of confusion. [T]he words "Boston Marathon" . . . do more than call attention to Channel 5's program; they also describe the event that Channel 5 will broadcast. Common sense suggests (consistent with the record here) that a viewer who sees those words flash upon the screen will believe simply that Channel 5 will show, or is showing, or has shown, the marathon, not that Channel 5 has some special approval from the [trademark holder] to do so. In technical trademark jargon, the use of words for descriptive purposes is called a "fair use," and the law usually permits it even if the words themselves also constitute a trademark.

The WCVB-TV case serves as a perfect segue into the next fair use defense, nominative fair use. Unlike most statutory fair use case, nominative fair use involves the descriptive use of another's mark to describe or identify the plaintiff's goods or services, not the defendants. In 1992, the Court of Appeals for the Ninth Circuit articulated this new defense to trademark infringement. In New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992), the Ninth Circuit, in a typically articulate opinion by Judge Kozinski, described those circumstances in which the use of another's trademark is allowed, even when not directly covered by the statutory fair use defense of the Lanham Act: [W]here the defendant uses a trademark to describe the plaintiff's product, rather than its own, we hold that a commercial user is entitled to a nominative fair use defense provided he meets the following three requirements: First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the use must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. Id. at 308. New Kids involves a balancing of the plaintiffs' rights in the name of their rock group, and the rights of the defendants to use that name to identify the group as the subjects of public opinion polls. The defendants were two newspapers which separately operated "900" phone numbers which callers used to respond to questions which had been posed in their respective newspapers. The newspaper advertisements each contained a picture of the "New Kids on the Block" and posed various questions about which "New Kid" was the favorite. The New Kids on the Block filed suit and alleged trademark infringement by the newspapers for using the New Kids trademark in association with the advertisements. The district court had granted summary judgement to the newspapers on First Amendment grounds. On appeal, however, the Ninth Circuit chose not to reach the constitutional issue, but could not use the statutory fair use defense because NEW KIDS ON THE BLOCK is not a descriptive term, but rather an arbitrary mark for a singing group. Much as the statutory fair use defense of the Lanham Act is aimed at protecting a competitor's ability to simply describe its product, the purpose of the nominative fair use defense is to allow a third party fairly to describe another's product.5 According to Judge Kozinski, if a law suit resulted every time someone's trademark was referred to, then a valuable social and commercial means of communication would be lost. Such nominative use of a mark -- where the only word reasonably available to describe a particular thing is pressed into service -- lies outside the strictures of trademark law: Because it does not implicate the source-identification function that is the purpose of trademark, it does not constitute unfair competition; such use is fair because it does not imply sponsorship or endorsement by the trademark holder.

Actually, if you work hard, get an education and always reach for more, you too can achieve success. Good Luck. Jerry

You are still going to pay it. Do you get this pissed over the rising price of gas? I doubt it. Jerry

Thanks, enough said Jerry

Well, I was a C student in English. So was Dubya. Now, do you suppose that I am being paid to spell Union Pacific. I have secretaries for that stuff. Jerry

If you are in reference to me all I have said is that Horizon will cause an increase in Athearn prices and eventually a reduction in jobs in the USA. I suppose I accept that as the way business is going. The hobby just got more expensive. So be it. Jerry

Exactly, they no how the business world is and they don't act like spoiled babies. Jerry

If you don't see the relevance you are beyond help. Just go back to playing with your Aussie toy trains Jerry

Finally, someone with a brain. Jerry

Relevance??? You don't see a corrolation here? Obviously your career has nothing to do with "Business".