More "Trademark" issues

feel that the trademark isn't owned by the U.P. anymore because of non-use, that's OK.< The real arguments are here;

1) UP does own that newer shield or whatever trade mark. Most all will stipulate to that. 2) UP owns no others and in fact has been turned down (by the government) for most/all (previous roads) that they have tried to re-register. 3) UP ( and many other corporations) are simply using the concept (and this is what most people object to) "we have more money and more lawyers than you will ever have so we win!

And if there was any concept that is not in the spirit of the Constitution of the US it's number 3!

Since the Internet is a 'modern' medium where's the problem?

Here's another.

"Here lies an Honest Lawyer, and that is Strange" Gravestone of Thomas Strange LLB, in the UK. Presumably a final comment by Mr. Strange on his peers.

Please tell me where in the contitution it even mentions the words trademark, copyright and patents. I have done a quick text search and cannot find anything to back up your assertion.

I believe that these were enacted by law and were not even called property until this whole "Intelectual Property" thing started to be pushed.

I suppose you are one of those people who think that everything under the sun should be owned by some private individual.

Ken Harstine

[This followup was posted to rec.models.railroad and a c> > >

It does not use those words per se.

Article I, Section 8 "The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; ..."

U.S. Constitution, Article 1, Section 8:

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What's the current status of UPs efforts to what? -- license their logo, or stop model makers from using it altogether?

How long have model train makers been using their logo with impunity? If UP let it be used for free by the model train makers for many years, has anyone successfully argued that they've lost the right to now claim trademark infringement against the model train makers on a legal theory akin to adverse possession law that grants 'regular tresspassers' a permanent right to use private land because of continous 'notorious' use that was uncontested for longer than whatever the statute of limitations is? (Are there other legal theories that might succeed?)

Or will the model train makers capitulate because

1) they don't have legal standing to continue to use private railroad trademarked names or 2) they don't want to lose whatever goodwill exists between the model makers and railroads (if there is any)?

-mark.

in article 1nB0f.13824$ snipped-for-privacy@news.cpqcorp.net, Mark Sornson at snipped-for-privacy@zk3.dec.com wrote on 10/4/05 1:12 PM:

It seems that this UP et al issue is brought up annually with the same arguments: fallen flags trade and service marks have lapsed; older UP et al marks are in the public domain due to long standing use without prosecution or objection by the "owners," etc. No one argues that UP has no right to protect their current marks.

The conclusion is the same: whatever the merits of UP's claims over fallen flag and historic marks, the legal costs and possible penalty for willfully using the marks exceeds the cost of just paying up and passing the cost (about $5 per $100 retail price) onto the customer. So even those who initially were going to the mat for this (Athearn to name one) capitulated. The Horizon acquisition probably had something to do with that decision.

So all we can realistically argue about is UP's wisdom in pursuing this small revenue source. It may make me feel animosity towards UP as a company, but I have no way to apply pressure: I don't ship anything of any size. And industry as a whole who might affect UP's decisions don't care, either.

Intellectual property law is a mess right now, in my opinion. Ridiculous things get patented (see MTH speed in miles per hour patents and disputes with Quantum and BLI in the archives), overbroad patents are granted (like the one to a Mr. Hiatt who patented the "microprocessor" and tried to get millions from Intel...he eventually lost, but some lawyers made a lot of money); like music which is still under license and copyright decades after the composer's death (Duke Ellington songs must still be licensed for use), plays based on classics still requiring licenses for schools (Treasure Island, written for the stage in 1904 and based on R. L. Stephenson's book is still under license by the French company); and the list goes on.

I understand the anti-fraud need to protect service and trademarks still in use identifying a business (Mickey Mouse comes to mind) and there is a need to do that, but no one confuses Southern Pacific with UP any more.

And don't get me started on the Millennium Copyright stuff: makes what was formerly "fair use" (making my own backups, for example) illegal, along with the prior restraint on free speech by making it illegal to publish a program on the internet do decrypt files.

I guess it is the usual answer: write your congressional representatives.

That's the Disney extension of copyright. Disney Corp must've helped someone get elected....

in article AbE0f.2150$ snipped-for-privacy@news20.bellglobal.com, Wolf Kirchmeir at snipped-for-privacy@sympatico.ca wrote on 10/4/05 4:27 PM:

No, Disney was rightfully concerned that the copyrighted, trademarked, and service marked image of "mickey mouse" was about to be used to imitate genuine Disney products including the usual stuffed animals, but also animations, advertisements, etc., all leading to confusion in the market place: is this product "endorsed by Mickey Mouse" really from Disney, or someone else? Copyrighted symbols, etc. still in active use need some form of protection.

It is less clear that the "Happy Birthday" song needs the same protection.

Gibson just sued PRS Guitars over the PRS "Single Cut," a guitar which bares a superficial resemblance to the Les Paul design (but then, so does the Fender Telecaster, a prior product). PRS suspended all production, advertising, and asked dealers to return product while the suit was pending (the penalties for willful violation of copyright or patent are quite high). A wise judge finally tossed Gibson's suit pretty much based on a deposition from a Gibson employee that anyone mistaking the PRS Single Cut for a Les Paul was "an idiot." (By the way, the PRS Single cut is probably a superior product in many ways, and it is more expensive that most Les Paul guitars).

So, sometimes, the system works, but only the lawyers get any money.

"Limited" means that it can't last forever -- but nothing in the Constitution says "very limited."

If the authors (or subsequent modifiers) had agreed that a specific time limit should be in the Constitution, they would have spelled it out.

I hate to burst your bubble -- but that story is the one that Flexgauger referred to in his original message in this thread. That makes it very redundant, wouldn't you say?

Well, if Disney's success in marketing Micket Mouse leads to such confusion, too bad. You gotta play by the rules, even if the rules hurt you. Not that they would: no one could use Mickey Mosue as a trademark, for example, since is no limit on trademark or sevice mark protection so long as they actively used. Disney's trademark/service mark protection isn't the issue. No one would be allowed to package any protect to look like a Disney product. Besides, using MM for non-Disney-like purposes would not IMO be confusing. Oops, I forgot: American trademark lawyers routinely assume that the denizens of the USA to be utterly stupid and easily flummoxed by any con-man coming down the pike.

There is however a limit on the protection of _copyrighted works_, in this case the movies and books, etc etc. Under the old rules, Disney's early cartoons would have gone public domain a long time ago: Disney asked for and got an extension to 75 years, and only recently got that extended to 100 years. Public domain means anyone could've done anything they wanted with them. That's what Disney didn't want, so they lobbied for and got an extension of copyright (which AFAIK only applies in the USA, which ignores international copyright law as a matter of course anyhow.)

When the copyright on Disney's feature length cartoons finally does run out, there will be a nice question about whether the titles etc are covered as trademarka. AFAIK, titles are neither trademarks nor service marks. Disney's trademark, like any trademark, protects the packaging etc in which the product is sold, but they won't be able to stop people from selling the movies in other, non-Disney packaging. In fact, people will have to sell the movies without any reference to Disney at all, because "Disney" is trademarked. That would cost Disney a lot of free advertising....

It was in fact composed recently enough that it is still protected. It's one of those songs that people don't realise is recent (and copyrighted) until they check. "Fair use" means you can sing it if you want, just don't charge money for the privilege (???) of listening to you. :-)

Interesting case history. Copyright, trademark/service mark, etc law is made for the benefit of corporations, not for creators, and least of all for consumers. This is an evolution IMO not foreseen and definitely not intended by the framers of the US Constitution.

The US Constitution's reference to protection for writers and inventors IMO very clearly a) assumes that copyright is a matter of licensing by the State, not property as such; and b) limits protection (via licensing) to individuals. The theory is that by granting an exclusive license to benefit from an idea or concept, the State would provide an incentive to create and invent, which would improve the arts and technology. Of course an individual may contract with someone to produce the goods in question for a consideration, but copyright was clearly conceived as a licence, not as property.

But then the framers of the US Constitution didn't think that corporations were persons, either. This was so obvious to them, they didn't think it necessary to say so, which enabled later legal bright lights to argue that coporations were persons in law, one of the most pernicious legal concepts ever to be put into practice. But that's another issue.

Is this an example of what the "tort reform" lobby refer to as groundless lawsuits?

in article snipped-for-privacy@40tude.net, Steve Caple at snipped-for-privacy@commoncast.net wrote on 10/5/05 7:46 AM:

Maybe a ground loopy lawsuit...

pernicious legal concepts ever to be put into practice.< Then you would think the Supreme Court (and it's newer?? strict interpretation [maybe]of the Constitution) will change some of these laws. No way and it will probably make them worse. So in today's society what is strict interpretation vs legislating from the bench?

Constitution says "very limited."< I understand the term limited (when Hell freezes over) but how long is "very limited"?

What's the difference? One mans; strict interpretation is another woman's legislation from the bench. We in Canada have the same dilemma, since we have a Charter of Rights and Freedoms, which is explicitly designed to judge the law made by the lawmakers.

I don't think the trend to, um, widen the interpretation of the US Constitution will change, in fact it's inevitable and necessary. The Founders could not foresee all that would change, and were wise enough to frame the Constitution in abstract enough terms that it can be adapted to the changing needs and values of the polity that it guides. The only question is which ideology informs that process. The selection of Supreme Court judges is now nakedly and unashamedly political - a few decades ago there was at least the pretense of non-partisan attitudes.

Not being a US citizen, I can only offer comments from the sidelines. I have read around US Constitutional issues from time to time, so I am probably somewhat better informed than the average US Citizen, who gleans his insights primarily from TV and radio talk shows. Or so I've been told.

That being said, the Declaration of Independence, and especially its Preamble, is still, in my estimation, one of the greatest documents of _liberal_ democracy ever written. It rests on the principle of responsible (not representative) democracy: that is the notion that the rulers are responsible to all the people, and do not merely represent the interests of the people who elected them; and further that the people have not only the right but the duty to remove rulers who have broken the implicit contract between them. The Constitution does not IMO reflect all the principles, express and implied, of the Declaration, more's the pity.

And that's enough political theory for today.

Very limited ends with the first snow fall each year, in Hell Michigan. I doubt it is on many maps, but it does exist.