On Mon, 03 Oct 2005 13:07:34 GMT, firstname.lastname@example.org> wrote:
Since the Internet is a 'modern' medium where's the problem?
"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
It is only those who have neither fired a shot nor
heard the shrieks and groans of the wounded who cry
The "them" I am referring to are the trademarks of the predecessor
Trademarks CAN be bought and sold.
Certainly a trademark isn't real estate, like a house or land is. I
never claimed otherwise (nor have others), so I don't know how you made
that jump in logic to equate trademark ownership with real estate
ownership. But trademarks ARE property, and a person (or a
corporation, in the case of the Union Pacific's trademarks) can own and
license them to others.
If people don't like the Union Pacific's trademark policy because they
feel that the trademark isn't owned by the U.P. anymore because of
non-use, that's OK. Certainly myself (and others) don't feel that is
the case, but there surely are grounds for others to make that claim.
Likewise, if people don't like the Union Pacific's trademark policy
because they feel that it is bad for the model railroading community,
again that's OK. Even though the legality may be in question
(depending upon if you believe the U.P. owns the trademarks... see
above), I'm sure people on the other side of that argument can at least
see where that concept is coming from.
BUT... if you're going to say that trademarks can't be bought, and that
the owner of a trademark has no rights (if no rights, what does
ownership mean then?)... well then, you're just blowing smoke. Why
even make such ridiculous claims?
Whitefish Bay, Wis.
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!
I agree with #1. Never had a problem with that.
I agree with #2. They've gone to great lengths to wipe out the
assimilated roads' identities.
I most wholeheartedly agree with #3. It's the modern American way. It's
never the principle of whether or not you're right or wrong, it comes
down to which way will cost the least money, and it's sad that the bean
counters control even the legal system.
in article 9YA2f.1589$ email@example.com, Jay Cunnington at
firstname.lastname@example.org wrote on 10/10/05 2:22 PM:
It's not the bean counters who cause the problem,; they are merely
pragmatists who point out the costs. It is the Trial Lawyers Association
(largest contributors to the Democratic Party at last count, though the NEA
may have surpassed them recently) that consistently lobbies against tort
reform, including LOSER PAYS changes.
If a deep pocket sues you, and it is not an abuse of process (essentially
impossible to prove), you must pay to defend yourself. Think $500 an hour
and hundreds, maybe thousands of hours in an intellectual property case). If
you think you are right and fight it to the end and WIN convincingly, you
still lose: you can't sue the deep pocket for your legal fees. So, if half a
million is chump change to UP, but it is a "bet the company" for Mom&Pop's
Model Railroads, and there is no way to recover, your bean counters tell you
If we had a loser pays system, at least if you really really thought you
were right, and you were, the other side would pay for your lawyers. I
suspect we would then have contingency fees on the defense side of these
kinds of cases for a change.
I don't know why the TLA is against this: it is sort of a full employment
act for litigation defense lawyers who now mostly get paid by insurance
companies in personal injury cases. That could be expanded to being paid by
the losers in all kinds of cases where the defense was strong, but had no
Copyrights, trademarks and patents have been considered property in the USA for
over 200 years. I think that qualifies as traditional.
The government does not license for any of these. They are guaranteed by the US
Patents are granted by the government. The patent holder licenses it to others.
Copyrights are inherent in a created work, and can be registered.
Tradements are registered but must have that registration approved by the
Patents and copyrights have time limits.
Trademarks can be renewed forever if they are in use.
Are you one of those people who thinks something only has value if it hurts
when you drop it on your foot?
Ken Rice -=:=- kennrice (AT) erols (DOT) com
http://users.erols.com/kennrice - Lego Compatible Flex Track,
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
I suppose you are one of those people who think that everything under
the sun should be owned by some private individual.
[This followup was posted to rec.models.railroad and a copy was sent to
the cited author.]
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; ..."
in article AbE0f.2150$ email@example.com, Wolf Kirchmeir at
firstname.lastname@example.org 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
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.
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
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
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
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<VBG> and it will probably make them worse. So in today's society
what is strict interpretation vs legislating from the bench?
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
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.
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