UP and lawsuits

It appears that in the UP lawsuit against that poor calendar seller that; "depositions were taken in Vancouver BC; UP offered to settle; Huxtable
declined." I'm guessing UP finally figured out they were in trouble with this one and the law firm is afraid the s*** is going to hit the fan.
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On Wed, 22 Feb 2006 11:24:20 -0800, Jon Miller wrote:

Correction: that should be "chickens***"
--
Steve

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I read in Railroad Modeller that UP are also taking a model manufacturer to court. Surely the fact that someone wants to model their locos is a *good* thing as this is giving UP some free advertising. For those of us outside the US a model (or a video) is often the first time that we come across different railroads.
Where will it end? Does it mean that if I stand beside a railroad and take photos I am liable to the RR for their 'intelectual rights' ?
Anyone who knows about this case (or even thinks they know) care to enlighten those of living outside the US.
--
Mike Hughes
A Taxi driver licensed for London and Brighton
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If you sell the pictures maybe?

--
The lotto must be rigged, I should have won by now.
Modular furniture is cruel and unusual.
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Especially if you call it "UNION PACIFIC CALENDAR 2006."
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Mike Hughes wrote: [...]

A trademark has real monetary value ***, and its owner does not want its value diluted by similar trademarks in similar or competing businesses. The courts have upheld the principle that a trademark infringes on another trademark owner's rights if used in such a way as to "cause confusion in the mind of the buyer" (or words to that effect.) Thus, using a trademark similar to UP's in the transportation business would be clear case of infringement. For example. suppose you founded a trucking company, and called it Utica Pacific Transport. Sofar, not much of problem. But suppose you mark your trucks using UP's red lettering on a yellow background to spell out "Utica Pacific": you would be in trouble. If you used "UP" in red on a yellow background, you'd be in real trouble.
Whether a model or toy train actually infringes on UP's trademarks is not clear. Rulings on how far trademark protection can extend beyond a company's core-business have been ambiguous. IMO, UP is going too far, since no one would confuse a toy or model train with the real thing. OTOH, with the advent of sponsored models for collectors (eg, Coca Cola, John Deere), UP's rights may well be infringed. Also, railroad companies have sponsored or produced calendars and other publications in the past. UP's explanation seems to be that they don't want cheesy or sleazy models decorated for UP, nor do they want a substandard publication showing their trains. A judge could well agree with them, if it gets that far.
Of course, maintaining trademark rights and charging licensing fees is not the same thing. UP could license its trademarks for free, and charge the costs of the paperwork to advertising. But I suspect some careerist s.o.b. somewhere deep in the bowels of the organisation saw an opportunity to rise above the s**t in which he wallowed, and proposed licensing as a moneymaker. Now UP is stuck with paying his salary and the costs of his office staff....
***Footnote: Here in Canada, Nestle has dropped the original makers' names on its chocolate bars, but still marks them Mars, Coffee Crisp, KitKat, etc. On some specialty items intended for niche markets, it's even kept the original maker's name, eg, Cadbury's Dairy Box, sold AFAIK only at Christmastime. Good illustration of the value of a trademark, I think.
HTH
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Union Pacific Railroad has U.S. trademark #2666974 for "UNION PACIFIC." They also sell calendars, and they also license their trademark. Nils Huxtable is selling a calendar called "UNION PACIFIC CALENDAR 2006," a calendar which the Union Pacific has no quality control on. You darn right a judge could well agree with Union Pacific.
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I can see that in such a case the use of the UP name would tend to imply that the calendar had been authorised or approved by them, but how can this be the same for a model loco produced by a manufacturer who is also producing nearly identical models with a different livery. What if someone scratch builds a loco, paints in UP colours and later sells it on? Sounds like a case of some busy body trying to make a name for themselves.
I could of course be completely wrong as I don't know the exact case being put forward. Is there anywhere on the web where I can find out more - or can someone post more info here.
--
Mike Hughes
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For the particular case we are discussing, here are the UP's lawsuit and Nils Huxtable's reply: http://www.helpsteamscenes.com/viewlawsuit.html
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Mark Mathu wrote:

OK, I read it all, and IMO Huxtable has a case. IMO, a jury would acquit him and find for him in the counterclaim. No telling what an appeal court would find, though. No matter what, UP looks bad, because they are beating up on a photographer whose products UP, and staff of UP, have purchased many times in the past, without ever a murmur of trademark infringement, etc.
And my hunch was right: UP is stuck with paying the costs of a "director of corporate relations" by name of Brenda. Heh heh.
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The fifteen instances of "defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations" sure doesn't help his case, though.
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Huuuh ?
You don' know what you are talking about.
In an Answer, a defendant uses that phrasing to mean "Well, plaintiff you claim 'X' is fact; now prove it."
-- Jim McLaughlin
Reply address is deliberately munged. If you really need to reply directly, try: jimdotmclaughlinatcomcastdotcom
And you know it is a dotnet not a dotcom address.

sufficient
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"Jim McLaughlin" <jim.mclaughlin> wrote in message

Why wouldn't Huxtable use that reply to all of the claims?
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Because Huxtable has a duty to admit what he personally knows is true, to deny what he personally believes is false, and to require the plaintiff to prove what plaintiff claims to be true and which he, Huxtable, has no personal knowledge as to the truth or falsity of.
If you had 3 years and the tuition, I'd try to teach you federal civil proceedure.
--
Jim McLaughlin

Reply address is deliberately munged.
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Jim McLaughlin wrote:

[///]
Thanks for that clarification, Jim.
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In my mind I can see why UP would be worried. If taken to court _with a jury_ it would look like a big American Corp. picking on some poor Canadian photographer putting his pictures together in a calendar. While a judge (just another lawyer) would probably be on the side of UP (if the case was decided by a judge) I'm guessing a jury would be a crap shoot for UP. Usually these types of cases are heard by a judge and the choice of a jury definitely is not good for UP. Even if the jury thought that UP had a case Jury Nullification is very popular these days! If UP lost then I sure others would go after them, using a jury of course.
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Mark Mathu wrote:

As I understand it, what it means in non-lawyer-speak is that Plaintiff didn't provide grounds in support of their allegations, hence Defendant can't respond either way. It's a way of saying "There is no case here." If the judge accepts these defences, the allegations in question will be removed from the action. That's presumably what Huxtable wants, so he can focus the case on the two main points, which as I read it are a) that UP has lost control of the trademark; and b) UP has interfered with and damaged his business, and so is liable for damages.
a) is the point that amuses Jim McLaughlin. Me too. :-) But b) amuses me even more.
Making unsubstantiated allegations is a common ploy if you have a weak case. It sometimes scares Defendant into settling. Didn't work this time. Defendant obviously has good counsel.
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What hunch was that? Brenda Mainwaring's name is all over the UPRR web site and has been mentioned in rec.models.railroad several times in the past.
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Mark Mathu wrote:

Well, I missed her name, I guess. Anyhow, ISTM that she is trying to justify her existence and salary. She is beginning to cost UP major bucks, and she is doing UP's public image some serious harm, albeit in a rather small segment of the public. However, if the publicity spreads, it could be major damage: the public doesn't like to see large corporations bullying small business folk. IMO, her seniors will have to decide pretty soon whether it's worth supporting her campaign or cut their losses.
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it could be major damage: the public doesn't like to see large corporations bullying small business folk. IMO, her seniors will have to decide pretty soon whether it's worth supporting her campaign or cut their losses.<
Another SWAG, if this case were to go to court, and UP were to loose I'm guessing it would make national news. How big a spot I don't know but I'm sure CNN would mention it (they always look for interesting stories) and probably the internet news (same reasons). Papers I'm not sure about.
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