Jeff,We model railroaders always laughed at the idea that UP was only doing this to make sure it was just for "quality" products. Like they were doing us a big favor and for our own good. Yeah, right.
Scott,And yet BNSF, NS, KCS, CN and CP do not have licensing programs, at least not with model railroad items. If licensing is so critical to protect a company's rights, then why do 5 of the 7 Class I's have no licensing some 13 years after UP started it (and 30+ years after CSX did so).
The counter argument against UP's licensing of predecessor roads was that they'd already abandoned most of them for so long that they should already be in the public domain. No one has ever tested that. I recall the licensing issue in the military model hobby where Boeing, etc., issued demands for money or cease & desist letters to every model manufacturer in plastic, die cast, etc. From the finest resin craftsman kit to tiny Micro Machines, they wanted cash. The obvious conclusion was that these big, multi-billion dollar companies would (of course) get their pound of flesh. The model companies resisted, however. It went to trial and the federal judge ruled against Boeing, et al, for all models of things paid for by taxpayer dollars. Because the taxpayers had paid for the prototype, the rights to make models of same were automatically in the public domain. So while Boeing could demand cash for models of the privately funded 747, they would never get a dime for a B-17 model.
So who knows what would have happened if UP went to court. They could have lost, with the judge asking questions like, "Let me get this straight: you want money for the rights to the logo of a railroad that you obliterated 100+ years ago? It's a little late for that, don't you think?"
Besides, as UP has itself shown, a simple minimal annual fee protects their rights just as well as individual fees on every item sold.
CSSHEGEWISCH,The difference is that Disney has always had licensing. Heck, they got the US Gov't to change the law so they don't have to worry about losing control of Mickey Mouse (the rights to art used to become public domain X-years after the death of it's creator; now it can be renewed indefinitely). UP had nothing like that from 1862 to 2004. 142 years... At what point does something expire?
oltmanndApparently, if you let too many variations of your trademark out into the world, you can actually lose the rights to it through trademark dilution. NS went to pretty great lengths making sure employees used approved versions on presentations, literature, and give-away trinkets. While not a heritage scheme, the "blue" version of the AC conversion locomotive scheme painted at Chattanooga ran afoul of the policy. They came out of the paint shop with blue logos on the front and sides. The logo has to be in black or white, so initial photos were pulled down from the internet and the units were quickly patched up with black logos.
NS went to pretty great lengths making sure employees used approved versions on presentations, literature, and give-away trinkets.
While not a heritage scheme, the "blue" version of the AC conversion locomotive scheme painted at Chattanooga ran afoul of the policy. They came out of the paint shop with blue logos on the front and sides. The logo has to be in black or white, so initial photos were pulled down from the internet and the units were quickly patched up with black logos.
Which only goes to prove that the 'Legalistas' failed in their job as they weren't protecting variations on the trademark.
Never too old to have a happy childhood!
Trademark protection is a big deal, no matter what business you're conducting. It may be an extreme example, but Disney has gone to incredible lengths to protect the rights to Mickey Mouse. UPS is also very protective of its trademarks.
My understanding of the situation (from a hobby store owner) was that UP wanted to make sure that they had control of their logos and trademarks. Any company that's worth it's salt will take great pains to insure its logo and name are only used for official purposes. I've run into that at more than one company where I was creating presentations and had to get approval from the legal and promotions departments before I could use the corporate logos. I believe UP was resurrecting old reporting marks for some of their predecessor flags to help with this - including Chicago Minneapolis & Omaha on hopper cars that I've seen run through on the overland route. As it's their history, I feel it's their decision on how to allow it to be used - especially when others are trying to make money off it. Railroads are in a somewhat unusual situation with the model railroad industry in that it can be both good and bad for them. Good if it adds publicity and they can gain any financial benefits from allowing their logos and names to be used, bad if they are allowing anyone and anything to do whatever they want with it. While I agree that UP came off somewhat heavy-handed in this case, I am happy to hear that they have relaxed the restrictive policy and are allowing those of us who enjoy model railroading to purchase models based off their 'fallen flags' or even current lineups.
Apparently, if you let too many variations of your trademark out into the world, you can actually lose the rights to it through trademark dilution.
-Don (Random stuff, mostly about trains - what else? http://blerfblog.blogspot.com/)
I heard the new lawyer had been with a government agency, I'm not sure I ever heard which one. Since it's dealing with trademarks, maybe the Patent Office? If the person has since left the company, I doubt it was because of this.
No matter how or who started it, I recall one of the reasons given for the licensing was to control use of the trademark, so that it would only be used on quality products. About that time I saw the company store was selling HO locomotives in UP livery. Life-like toy train quality GP38-2 engines. So much for the quality argument.
I've noticed CSX also licenses their (and predecessor companies') trademarks on model railroad products.
Jeff
BaltACD jeffhergert Which begs the question - Is the lawyer still employed by UP?
jeffhergert
Which begs the question - Is the lawyer still employed by UP?
I think the question is not so much did they scapegoat some poor bastid as it is 'why did UP's legal department pile on so enthusiastically once the idea had been started by the 'new guy'.
None of the actual litigation (or threats of litigation) can be blamed on outsiders that the company can subsequently plausibly deny.
I concur that it would sure be interesting to find out whether 'heads rolled' in the wake of the period of, er, overenthusiastic monetization of perceived historical intellectual property... and whether the truly reprehensible conduct was that which was rewarded by discipline. In corporate affairs it so seldom seems to be.
jeffhergertWhat I had heard was that a newly hired lawyer in the legal department started it all. Jeff
What I had heard was that a newly hired lawyer in the legal department started it all.
Very interesting history of the UP licensing flap Paul3, the best summation I've seen so far.
I wonder if anyone at UP lost their jobs over that embarassing episode?
I can just imagine what Joshua Lionel Cowen would have said when presented with a situation like that. "What? You don't like I'm putting your name on my trains and giving you free publicity? OK, I'll tell you what, you want to see your name on my trains from now on, I'm not gonna pay you, YOU'RE gonna pay ME!"
The funny thing is, both the Santa Fe and the New York Central DID chip in on the development costs for the Lionel F3 diesel, just to get their names and color schemes on the toys!
Lots of great info in this thread. Thanks all!
From what I understand, all a company has to do to keep their rights current is to include the old logos in their annual reports. I believe this is what American Premier Underwriters did. APU is the former Penn Central, which is actually the New York Central's corporate entity. When the PRR & NYC merged, the technicality was that the PRR company would be dissolved and the NYC would aquire all assets of the PRR and be renamed to the Pennsylvania-New York Central Railroad, which was abbreviated to Penn Central.
The story about this goes that back in the 1980's when someone decided to copyright the PRR keystone logo. The gov't simply granted the copyright (they rely on the applicant checking for legal use), and the person in question sent cease and desist orders to every model company around, demanding cash for use of "his" logo. Eventually, word got to APU which sent their own cease and desist letter to the person saying that they own the rights to the PRR logo and still used it in their annual reports (where they had a history of APU). The person's PRR keystone copyrights were quashed once the appeal to US Gov't was made by APU.
As for why UP tried to squeeze money out of model railroaders and calendar makers, that would be Overland Model Importer's fault. When they started Tower55, a plastic line of models, OMI wanted an exclusive on the product to protect their investment and appealed to UP for the rights. UP, which had a good relationship with OMI (OMI did brass presentation models for UP execs), not only granted it, but also looked into the possibility of using their logo as more revenue generation like Coke or Ford.
Next thing you know, in 2004 UP is not only copyrighting UP items, but every predecessor...including one they didn't even own (they corrected that). UP demanded ~5% of every UP and UP predecessor product or 5% of a company's entire annual income. They also demanded to review every product before it was sold, using a production item to judge (and not a pre-production item), with the right to deny the entire production run and have all product destroyed, including all UP-related tooling.
Most of the leading model companies caved, resulting in the death of the MRIA (Model Railroad Industry Assoc.) as who wants to pay to belong to an industry group when they didn't lift a finger to fight this? Something they were created to do? All UP related items were marked up about $5 each to pay for UP's rights for about 5 years.
The only companies that didn't pay were sued by UP: Steamscenes calendars and Mike's Train House. Steamscenes, a 1-man operation, was sued because he used his own pictures he took of UP locos to make and sell calendars. With MTH, they made models of UP trains. MTH, having lots of experience with lawsuits, coutersued UP. They demanded all UP internal communications related to the licensing and the judge granted it as part of discovery. UP, which had recently changed managment, saw that the cost of complying with the discovery order by the judge and paying it's own lawyers had already wiped out all the money they made in 5 years of licensing.
The word came down at UP to try and end this lawsuit. First, they said that all licensing income would go to fund the Steam Program at UP, but MTH didn't back down. An agreement was reached: UP would replace its licensing program with a single inexpensive annual fee, and this applies not only to Steamscenes and MTH, but everybody.
Model RR does not provide any help to the railroads in protecting their legecy logos.
But the use by the railroads does. But the heritage units are only a small part of that. Railroads are still keeping rolling stock active with the older reporting marks. In most cases this corporate identity is still active on the books.
In a similar vein, American Airlines also has its own Heritage Fleet, composed of earlier liveries and the liveries of merger partners. While changing planes in Miami this past fall, I saw AA planes in TWA and AirCal colors.
Thanks all for the replies. I know that in order to keep a trademark registered, it must be used to some degree. Has model railroading supplied the primary source of continued use of marks for the fallen flags?
And those Heritage units roaming around our country bring railfans out in droves to observe them. Like it or not this adds extra security to what is at best a difficult to secure mode of transportation. Those railfans with cameras and cell phones can pop up anywhere in search of a Heritage unit. Now if you could just teach them to stay safely off the property and to observe and report . . .
K4sPRRThe shop foreman was asked by a group member the reason behind their heritage units. He replied it was to celebrate the company's history and a morale builder for employees.
This lines up pretty well with what Wick Moorman has said publicly. There has been a big turnover in employees as the baby boomer retire and he wanted to give the new employees a sense of where NS came from.
The rights to the non-Conrail predecessors belonged to NS, but the Conrail did not inherit any of it's predessors trademarks, so NS would have had to hunt them down and get permission.
Shock Control I read an entry on Wikipedia - which admittedly is not known for its high standards in academic research - claiming that the main impetus for heritage units is that they could allow the surviving major U.S. railroads to revive trademarks of the fallen flags they absorbed. Any truth to this, and if so, has it actually tested this in court?
I read an entry on Wikipedia - which admittedly is not known for its high standards in academic research - claiming that the main impetus for heritage units is that they could allow the surviving major U.S. railroads to revive trademarks of the fallen flags they absorbed. Any truth to this, and if so, has it actually tested this in court?
I would question the issue about trademarks as some are not owned by any current US railroad. The Pennsylvania Railroad is still owned by a survivor of the the Penn Central, Prime America. The NYC trademark is privately owned, the owner once threated a law suit when an NYC locomotive was restored and the logo used. That case was settled out of court.
Not long ago I toured the NS Juniata Shops in Altoona PA. The shop foreman was asked by a group member the reason behind their heritage units. He replied it was to celebrate the company's history and a morale builder for employees. He added that outside of railfans many in the general public would be unaware that its a heritage design...if they even pay attention to them.
But since you read it on the internet it HAS to be true.
If you took the time to read my original post, you would have seen that I wrote: "...Wikipedia - which admittedly is not known for its high standards in academic research..."
Shock Control ... the main impetus for heritage units is that they could allow the surviving major U.S. railroads to revive trademarks of the fallen flags they absorbed.
There was a great deal of discussion about this when UP started the heritage-unit practice, because UP had done serious branding protection on what it considered commercial use of things like its paint schemes. This went so far as to make an Athearn HO unit painted in Armour Yellow cost more than a unit in other roadnames. It was quite logical to presume that UP might revive the 'trademarks' involved in fallen-flag routes now part of UP in order to make all use of the historical names and marks (by the modeling community in particular) a sort of cash cow.
However, if I remember correctly, UP only applied the licensing requirement to the actual Heritage Unit schemes themselves, and not to the legacy schemes. I have not seen any recent discussions of reviving legacy paint schemes as monetizable trademarks. In particular, I think the NS Heritage Unit project was in fact rooted in pride rather than in licensing rights, but I'd defer to anyone with true factual knowledge of this aspect of the model-railroad industry.
But since you read it on the internet it HAS to be true
ROBERT WILLISON And I always thought it was a way for the railroads to recognize their past celebrate the present and look forward to the future.
And I always thought it was a way for the railroads to recognize their past celebrate the present and look forward to the future.
That's what I thought too. There's a sucker born every minute.
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