I live by a shortline railroad that uses a paint scheme exactly like the AT&SF zebra strip scheme of over 50 years ago. I love seeing NRE hybrids and MP20-Cs hauling intermodal and railboxes in zebra stripes. I have seen photos of a shortline in Arkansas that uses a paint scheme exactly like the Rock Island's yellow and red.
Do railroads have to request permission or pay a licensing fee to use paint schemes of fallen flag railroads?
UP is well known in the modelling community for charging license fees to use likenesses of their equipment. It's been opined that one reason for the UP commemorative locos was to maintain trademark protection for those fallen flags.
As for other railroads, it depends on the successors (ie, mergers, takeovers) and how tightly they want to control their trademarks.
There have been a good many "replica" locomotives, painted to resemble fallen flags. For that matter, a good number of locomotives have gone on to second (or third) careers still painted in the scheme of their original owners. Many ATSF CF7s can (or could) be seen in the blue and yellow "warbonnet" scheme.
So the answer to your question is "maybe..."
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
"Patented" is the wrong word, but you are asking a very good question about trademarks.
If the railroad was simply abandoned, so are its trademarks; and they is available for someone else. However, if it was acquired, the language of the acquisition in all likelyhood included trademarks.
To take an example many short lines are running engines still in harbor mist grey over Armour yellow. UP tolerates that, in no small part becase they need a market for their (slightly used) engines. However, I've never seen the UP shield on one of them and would bet that is removed before it leaves the property.
The shield is a UP trademark, and if you use it on anything from a ball cap to sneakers, you are going to hear from Omaha. It's not going to be a friendly letter.
To directly answer your question more facts are needed. Was the railroad abandoned or was it acquired? If it was acquired and the resulting railroad made any attempt to keep its logo in service (by painting a few cars with the logo, for example) you are infringing.
A color scheme all by itself is more fuzzy. The original case in this area goes back to the early 1950's in which it was held that a red and white checkerboard pattern used to wrap meat was a Swift trademark.
Sorry, this is one of those things that you really need a specific case and a specialized attorney to answer. Bring a boxcar of cash to his office!
AFAIK, the UP controls the marks of all the 'fallen flags' it has taken over, such as CNW, SP, MP etc.
C&NW, CA&E, MILW, CGW and IC fan
Logo copying is easier to prove than 'paint scheme'. Just how "identical" are the two paint schemes?
"They" have 9 stripes but "we" have 10 stripes?
"Their" stripe is 4 inches wide but "ours" is 6 inches wide, or "Their" stripe down the side is equidistant from the top and bottom of the loco, but "ours" is 1/3rd of the way from the top.
Are they "Exactly" the same colors? "Their's" is "Deep Black and Blinding White" but "ours" is "Blacker than black and Bleached White"... Might be the exact same pigment formulations, but have different names from different paint companies. Or maybe, "their's" faded to match "Ours"; that is not "our" fault?
They might be similar, but it could be argued that "ours" is not a copy of "theirs"... and it would take a bunch of lawyers ($$$) and a judge to make that determination.
Semper Vaporo
Pkgs.
schlimm AFAIK, the UP controls the marks of all the 'fallen flags' it has taken over, such as CNW, SP, MP etc.
It doesn't own PE but then again that wasn't a direct takeover. It belongs to MTS, wonder where it will go with Joel retiring ?
Short answer is no, a railroad can't patent or trademark a paint scheme.
Diesel paint schemes were generally designed by the locomotive builders in the early days of diesels, or a railroad worked with the builder to come up with a paint scheme. It wasn't unusual for several railroads to use the same paint schemes and colors. Often the railroads used schemes similar to the builder's recent demonstrator model's schemes.
What a railroad does have exclusive rights to is the railroad's name, herald/logo, and it's reporting marks...which includes the name and reporting marks of any railroads the railroad has purchased over the years.
So for example, if you look at the Nov. 2015 issue of Railfan and Railroad magazine, you'll see pictures of an SD-45 owned by the St.Croix River Valley RR in eastern Minnesota. The St.Croix Vally uses a paint scheme identical to the old Northern Pacific black and gold freight paint scheme. However, the railroad can't call itself "Northern Pacific" or use the reporting marks "NP" on it's equipment; those are owned by BNSF. Similarly, the Escanaba & Lake Superior in the 1980's painted it's diesels in the old Great Northern green and orange "Empire Builder" scheme, but it couldn't call it self "Great Northern" or use "GN" reporting marks or a GN herald/logo.
(BTW the NP "monad" herald is interesting; the yin-yang symbol is an ancient Asian symbol that NP borrowed from the Korean flag flown at the 1893 Columbian Exposition in Chicago, so that symbol itself can't be trademarked. However the version with "Northern Pacific" or "Northern Pacific Railway" around it's border can be.)
"Trade dress" (in this case, a distinctive paint scheme) can be subject to trademark protection. For example, if you design a package to look like a competitor's product, even if it doesn't have the competitor's trademarked name, it can be a trademark violation. Whether it is in a particular situation depends on the facts (bringing the boxcar of cash to a lawyer, as suggested in one of the other posts, is apt). However, in very general terms, a "trade dress" trademark violation is most likely to be found where the user is pretty obviously trying to trick buyers into thinking they are buying the products or services of the trademark owner. That's probably not a major issue with a short line using a historic color scheme emblazoned with the name of the current road, particularly if the "old" road isn't using the scheme any more (Iowa Pacific's passenger equipment with the old IC color scheme comes to mind).
That's a good point Falcon, one requirement for a person or company that owns a patent, trademark, etc. is that they both actively use it, and protect it. That's one reason why companies are often so quick to contact someone about what would seem like a minor violation - each time they fail to do so, they potentially weaken their argument in any future litigation.
However, I'm not aware of any case of a railroad trying to trademark or otherwise protect a paint scheme (that is, just the pattern and colors used, not including reporting marks, heralds, etc.).
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