Licensed heralds

Dear Jeff:

No. In fact, the whole 'railroad licensing' business rests on extremely shaky ground. You are legally permitted to use a trademark to refer to a product or service (for example the UP) as long as you do not present your product or service as a product or service of the trademark holder. For example, I can fill a bottle with Lake Erie water and print on the bottle, 'Compare to Perrier (R)', as long as I have the disclaimer on the bottle 'Not manufactured by or affiliated with Perrier America, Inc. (or whatever they are called)'

The ONLY JUSTIFICATION for UP, CSX, etc. is that the people who buy model trains will be 'confused' and think UP is producing them. Because model trains are toys, and we have many precedents for officially licensed toys, as well as precedents for the licensor taking some responsibility for the safety and idiot-friendliness of these toys, courts may be more likely nowadays to agree that this confusion exists. An artist who painted a picture (unless it resembled an ad) would NOT be likely to suffer from allegations of trademark confusion.

Since you are the end user as well as the producer of your models, you know that they are not official railroad merchandise. Your own work is clearly 'fair use' and you can sit happily at home and laugh at any army of lawyers...heh.

Cordially yours, Gerard P.

So if I buy a Lionel UP Veranda turbine and drop it on my foot I can sue the UP because their licenced product injured me? (G)

Probably not, unless you are using it for some commercial purpose. Running on your layout in your home and you don't charge admission or at a club with the same non-profit environment, probably not.

Your use of their logo would have to damage them in some way. If you are making money off of their logos and such AND they have shown a reasonable history of protecting such then you will probably have to pay them something.

So I paint a picture of something that has a UP, CSX, ... logo on it and hang it in my living room, how are they damaged?

No.

In addition, Union Pacific does not want people to freely use something which they own. 'Confusion' is not an issue with that.

Dear Sir:

Of course they don't, but if the use of their trademark is a 'fair use' then they can't legally prevent it, any more than I can prevent firemen from dragging hoses across my nice lawn. The 'confusion' issue is the only one (in my opinion) that might make the production of unlicensed models an 'unfair use', because I think it would be quite easy to prove in court that giving kids toys with UP heralds would help them grow up with positive opinions of the UP -- helping the brand, NOT damaging it.

The trouble is that (if my limited understanding of the law is correct) the burden of proving 'fair use' rests on the user, who would be the defendant in a UP-vs-manufacturer lawsuit. They might win -- but they might not, and it's easier to surrender than to put up a fight.

Cordially yours, Gerard P.

The reason UP 'owns' the heralds is to prevent that confusion. They don't own heralds so they can sell licenses for their use.

And coincidentally, that "little boy" represents yet another theft of intellectual property that got so wildly out of hand that there's nothing the creator could do about it...except retire and deprive the world of more stories...

CL

Who gave you THAT story?

not to mention that these railroads have allowed the open and notorious use of their trademarks by the model manufacturers for decades

the courts would surely hold that an implied license is in place

If the defense makes the point.

How can you justify the use of either the little boy pissing (Calvin) or the logo (Union Pacific) as "fair use?" Man, if I put my life's work into creating that cartoon character and people were making money from using it without giving me a cut for something I developed, I'd be pissed and certainly wouldn't consider it fair.

I'm sure that's negotiable among the photographer and publisher, but since the magazine is the one getting permission to publish the photo they'd be the one to license the logo.

It appears that U.S. defence contractors were trying the same ploy on plastic kit manufacturers, asking them to pay a licence fee for using military designations on their kits. An amendment, the Andrews Amendment H.R. 1815 has been passed in your House of Reps.which basically says : '...probhiting the Defence contractor from requiring toy and hobby manufacturers to pay licence fees to the contractor for use of military likenesses or designations on items provided by the contractor...' If the U.S. military contractors can be beaten on licence fees, surely the railways such as U.P. can also be prohibited from applying such fees. Write to your M.P. (sorry, Congress person) and quote the above amendment. Regards, Bill.

"Mark Mathu" wrote in message news:hKwre.11166$ snipped-for-privacy@tornado.rdc-kc.rr.com...

Thanks for pointing out that interesting amendment to the bill.

Although it seems like a simple solution to the railroad license problem, in the case of the Andrews Amendment what is actually being legislated is a requirement that the Department of Defense include a provision in their contracts that prohibits the contractor from licensing military products they produce. The DoD is a partner in the contract, so they are in effect taking that right through a negotiated contract.

But if Congress tried to pass a similar bill outright for railroads--- where in this case they are not a party to a contract--- wouldn't that be in violation of the Fifth Amendment ( "...nor shall private property be taken for public use, without just compensation...")?

As a further follow-up, here is the full text of that provision of the bill:

SEC. 820. PROHIBITION ON DEFENSE CONTRACTORS REQUIRING LICENSES OR FEES FOR USE OF MILITARY LIKENESSES AND DESIGNATIONS. (a) In General- The Secretary of Defense shall require that any contract entered into by the Department of Defense include a provision prohibiting the contractor from requiring toy and hobby manufacturers, distributors, or merchants to obtain licenses from or pay fees to the contractor for the use of military likenesses or designations on items provided under the contract. (b) Limitation to United States Companies- Subsection (a) applies only with respect to toy and hobby manufacturers, distributors, or merchants incorporated in or organized under the laws of the United States.

How would you quote that amendment in the case of railroad logos?

(a) The Secretary of Transportation shall require that any contract entered into by the Department of Transportation include a provision prohibiting the contractor from requiring toy and hobby manufacturers, distributors, or merchants to obtain licenses from or pay fees to the contractor for the use of railroad likenesses or designations on items provided under the contract. (b) Subsection (a) applies only with respect to toy and hobby manufacturers, distributors, or merchants incorporated in or organized under the laws of the United States.

Fifth Amendment issues aside (which I covered in a previous message), even if the bill were expanded to cover all contracts entered into by the United States, it seems so limited to be of little value. Perhaps the best they could accomplish is to pass legislation requiring Amtrak to negotiate toy and hobby licenses in future product deliveries. But since Union Pacific and CSX aren't supplying things with their logos to the government under contract, this might be hard to expand to cover the railroads in a meaningful sense.

Not a good link... you can get to Section 820 of the bill by following this link:

"William Pearce" wrote in news:42ae8f1a$0$14820$ snipped-for-privacy@news.optusnet.com.au:

Interesting. Just yesterday I took pictures of UP engines apparently leased to CSX and operating on CSX tracks (in Evansville's Howell Yards). If I sold those pictures, whose copyright would I be violating? UP? CSX? Both?

The contractor owns the rights to the designations???? I would have guessed the DoD (i.e. the government) owns them.