Union Pacific Sues Athearn & Lionel

On Fri, 04 Jun 2004 04:19:14 GMT, Captain Handbrake@Atlantic Coast Line.com purred:

I hardly doubt that. The Coca Cola Company NEVER pays to use their marks. They charge for that use (and a hefty charge it is) John Dere is the same. Why did Atehrn pay these fees and not UPs? Could it be because Coca Cola and John Dere authorized products are collectable and sell to even non railroaders while UP does not fall into that category?

cat

cat wrote in news: snipped-for-privacy@4ax.com:

Well, that's one part of Japan that's remarkably sane then :-D P'haps, if all this trademark/copyright/whatever insanity all falls through, more people will take up Japanese prototype railroading ;-)

There's something for everyone; steam, diesel, electric, freight, passenger - and unusual prototypes enough to choose from ;-)

cat wrote in news: snipped-for-privacy@4ax.com:

Uhm ... isn't that tantamount to rigging the jury ??????

On Thu, 3 Jun 2004 19:59:45 -0500, "Jim Hill" purred:

It doesn't need to be. A trademark has NO physical existence. It is a concept describable by a drawing but that drawing is NOT the trade mark, only the concept of it is. (yes, this is insanely fine hair splitting but that is what the law is all about) and I have split so many I am darn near bald)

No but the law has a different idea on the subject.

When was the last model plane carrying US markings seen? How about a Boeing designed plane? Now how about the manufacturer. you sure haven't seen any US models fitting those categories for years. Why? Because if someone is injured by the MODEL the person can sue Boeing despite the fact Boeing has nothing to do with the model. The same goes for the airline markings. To cover the legal risk Boeing had to institute licensing and the costs were huge due to insurance costs. (The US desperately needs to reform tort law in this area) Those models could not be confused with a real plane, so why is the argument when applied to model trains viable?

cat

in article DsPvc.83505$ snipped-for-privacy@twister.rdc-kc.rr.com, Mark Mathu at snipped-for-privacy@mathu.com wrote on 6/3/04 5:34 PM:

Nah, I was thinking of creating a line of tee shirts showing a ewe whose wool was died yellow, grey, and red urinating on a model train with the logo, "Ewe Pee."

I was OK legally until I realized that UP has even trademarked the use of those colors. Sigh, there goes another $10 down the drain.

Not to worry. Satire is still protected by the First Amendment, and the last time I looked, the Bill of Rights still trumps trademark claims.

The Olde Reprobate

You're confused. Take a look at any of the UP's recent trademark applications. The trademark laws specify some 34 separate classes of goods and 11 categories of services for which a trademark may be obtained. Neither the UP nor any other applicant is required to claim that they're using their trademark for ALL of those different classes of goods and services.

You're mistaken. There's no "minimum fee" required by the trademark laws for licensing agreements.

Not bloody likely. With only a handful of significant manufacturers on board, the UP will no doubt lose money in the short run -- especially now that they've chosen to take the case to court. But in their public statements, the UP has insisted that their goal is to eventually make a profit on royalties extracted from model train sales. On that score, even I believe them.

And making a profit is presumably the reason why the UP has recently chosen to add "model trains" to the list of items it claims to use its trademarks for. In fact, however, the UP is not in the business of selling model trains, and never has been. Lionel, on the other hand, has been selling models of locomotives and rolling stock lettered for the Union Pacific for longer than anyone in the UP executive suite has been alive.

People start frivolous lawsuits all the time, but I'm not aware of anyone suing a railroad because a toy train injured them. But if the UP expanded its trademark claims to include model trains so they could avoid litigation, they've obviously made a substantial blunder by starting a major lawsuit themselves :-)

Think about it . . . if some idiot manages to hurt himself with a model train, is he LESS likely to sue the UP if the model came in a box marked "This product approved for licensing by the Union Pacific Railroad"?

The Olde Reprobate

My gosh you are a dumb ass. That is the legal system in the US. What idiot country are you from?

Screw the UP, go back to what Lionel did in the 1950s, letter it Lionel Lines. It is still a train, it still runs, you can still operate with it. Trains and model railroading is about running these things. Not about what name is on them.

Hummmm. That usually means they're guilty.

Regards,

DAve

On Fri, 4 Jun 2004 11:26:22 -0500, "Jim Hill" purred:

This is called "external utilization". Under this, other entities are prohibited from using another company's trademark without their permission for ANY reason. If the other company were Union Pacific Sausages they MIGHT be able to use the name but never the symbol unless they had a proper license. (actually since UP has a distinctive name the sausage company in all likelihood couldn get rights to the name but more common names like Ford have no problem unless they come too close to the motor company's logos or get into one of the fields in which Ford already has a market presence). A trademark protects a company's identity in ALL areas. You are getting the "Reader's Digest" version of the laws which lack case law which is how laws are defined and interpreted. Law is more found in judicial interpretation than in the letter of it.

I didn't say the Trademark law set a minimum fee but interpretations and precedents have effectively done that by drastically abridging the rights of companies who could not demonstrate that they places at least some value on the use of their name (even a token amount shows you consider your name worth something. If you give it away for nothing a court can and often will consider you don't think your name is worth any actual value and you will be less likely to recover in cases of its abuse. Some things are not black letter law but have become de facto simply by preponderance of precedents.

Now that is interesting. I never saw that statement and would be interested in getting a pointer to it. Still the vast majority of non entertainment or sports licensing runs at a loss and I very seriously doubt UP will make a profit. If they think they will they have vastly overestimated the model railroad industry.

And this gives Lionel some special exemption from obeying the law? UP has wisely added models to their list since the recent shifts in law require them to look to POSSIBLE future expansion and use (you know they have a publishing division, don't you? So what is to stop them from hiring the same Chinese company Lionel uses to produce a line of models for them? I doubt they will but they legally could. If the hobby were larger, it might be a wise business move for them)

It isn't frivolous when you have to pay to defend against the suit and then lose and have to pay the plaintiffs. (this has happened to other companies like Boeing) I am uncertain whether or not there has been a suit over model trains but the precedents are there for one to be filed and won. Perhaps since model railroaders tend to be older their models have less contact with kids who are the majority of "victims" in these cases.

No but it does partially shield the railroad as both they and the maker MUST be sued rather than just having the plaintiff go after the company with the deeper pockets.

cat

On 04 Jun 2004 11:00:34 GMT, "JB/NL" purred:

No it is quite legal for attorneys to employ "assistants" in selecting a jury or developing a client image, etc. Rigging implies illegal contact between attorneys, one of those involved in the litigation, or one of their representatives. Consultants do none of that. All consultants do is study the available record of the juniors then observe them during selection (you would be amazed how much some people can get from observing body language and word choice. Remember this is all theory. no one can prove expert selection can predict a favorable jury but many believe it can and that gives plenty of work to the consultants.

cat

That link is to the application, not any kind of finalized agreement. I'm not an expert or a lawyer, but I have been involved in a few commercial contracts from a technical perspective. They all have their schedules and attachments and so forth that spell out the changes and exceptions from the base contract. Until and unless we have access to the finalized UP/ licensee contracts we can speculate all we want on what's in them. Note that I'm not agreeing with either Mark or Jon here, just saying that at this point we can't determine one way or the other, and that even then it may vary from one licensee to another.

Stevert

cat wrote in news: snipped-for-privacy@4ax.com:

In theory, it actually sounds fair... I guess the theory is to prevent people with a preconception favoring one side or the other from getting in the jury ... but as with all things, there IS a rather large gap between theory and practice ...

Oh well. We'll see.

Well, Jon must have seen it somewhere....

in article la4wc.1309$ snipped-for-privacy@nwrddc01.gnilink.net, DaveW at snipped-for-privacy@verizon.net wrote on 6/4/04 12:35 PM:

I'm not so sure that significant changes in the law have made this necessary. I believe it is a matter of a number of decisions in case law that are forcing this. Our entire legal system is based on referring to decisions in previous cases to determine the current interpretation of laws. Interpretations of laws mutate over time in this way based on the previous judgments of juries and justices. IANAL, so I will leave it at that.