Your trademark is being used to make millions. And you get nothing CTT!

[phatkat64]

QUOTE: Originally posted by vitabile

Phatkat64:

...........So long as there are reasonably priced motive equipment out there, I'll make do.

Tony

Tony, that's what I'm counting(betting) on....

I'm sure I'm not the only one who waited 30 years to build his dream layout, only to find out that it has become cost prohibitive. I could go HO, but chose O scale high-rail because of the realism with the action accessories - the play value!!!!

The world changed, I'm just trying to roll with the punches.

[Anonymous]

Phatkat64:

We'll see where the market goes. There's no gaurantee that Lionel's going to make any money off of the $700 locomotives, and they may not be in business for long. And if they don't fold (which I believe is likely), they may not be in HO for long, either.

So long as there are reasonably priced motive equipment out there, I'll make do.

I do not intend to buy anything MTH in any scale ever again. And if even HO gets to be too expensive, I'll just get out of the hobby. I can find lots of other uses for a 10x20 room

Tony

[phatkat64]

QUOTE: Originally posted by vitabile

Oh, and if Mike Wolf ends up owning Lionel, I think I'll switch to HO. At least DCC decoders are $12.50 a pop. I can probably get a DCC command station by selling everything O gauge I have acquired since last year.

Tony

There's not a point in that anymore. News from the HO front. Lionel's now making $700 HO locomotives, and one other company's followed suit. MTH is going to produce Protosounds for HO, jacking up the price of some other equipment. HO's heyday of being the only affordable scale are being threatened by the O scale manufacturers!

[Anonymous]

Whenever my Dad would buy a car, the first thing he would do is tear off the license plate frame and any other dealership advertising on the car. That included dealer placed stickers and chrome plates. Sure he made a mess of a new car, but he felt better. When I asked him why he did this, his reply was: "They didn't give me that good a deal to be advertising for them for free."

[3railguy]

In the good ole days, railroads were much more accommodating to the model railroading industry. They were flattered that their equipment was being modeled and went out of their way donating blueprints and paint chips of their equipment to model manufactures. We've grown accustom to this and now all of a sudden they want to charge like hell for it all.

Sure Lionel charges companies to use their logo but they use discretion. Hallmark Christmas tree ornaments for example, are almost direct competition with Lionel. On the other hand there was an owner of a shortline railroad in Blissfield MI who painted his real railroad GP-9 "Lionel Lines" the paint scheme is close to the Lionel 90th anniversary GP-9. Lionel was flattered and didn't charge a dime. I don't always agree with Lionel's name policy. You could not get me to wear a Lionel T shirt unless it was given to me for free. You would have to pay me to wear it at a train show. I do not pay money to endorse anyone whether it be Lionel or the Green Bay packers.

[Anonymous]

Fleet

Like I said in the other thread post; If you don’t like what UP is doing don’t hide your head in the ballast.
go out and buy a lot of UP voting stock and vote these so-called evil directors at UP out of office.

There are the ones who started the lawsuit anyway. And you are right this could go either way; it depends on what UP knew about the toys; Are they barred by laches or estoppel; I simply don't know yet without looking at the discovery that UP obtains from Lionel and back;

If there is a memo from someone at UP circa 1945 saying to JLC :
"go ahead help us with our advertising and promote our line thru your trains..." then it is one story.

I suspect however that there is a memo from Lionel's Legal counsel or in-house counsel saying instead :
" UP and those other road names own the trademarks to their stuff, we better contact them" And no one at Lionel listened. Well that's a different story

However, this wont come out because it is a privileged Attorney-Client communication.


Alan

[Anonymous]

Alan I'm for the little guy always have been always will be.As you said the case could swing to either side if it goes to UP good for them it doesn't impress me but if the little guy wins awesome. I dont want your job in any way shape or form.Your are taking all this way to personel you need to back up and look at the big picture here because the veins in your neck are starting to swell.It is only my OPINION.And as for your comment directed at me I am only saying the same things that others are saying only in different words.And no I don't feel wronged not by UP or you but as you say I digress.You are right lionel doesn't have the right to use it for free.But the UPRR doesn't have to charge for it either they just want to make that almighty dollar.Look at the CSX deal no charge just let everyone know that our logo is trademarked.And I do beleive if we got a bunch of signitures on an electronic petition we might make a difference because its all of us that make or break a company like UP with our shipping.Just think if everyone stopped shipping anything with UP for one week they would lose millions.Dont forget that in the end it is you and I who pay that little 3% difference.And I will be d@#$$# if I'm going to pay the Union Pacific Rail road to run a 1/48th scale locomotive or cars on my own personnel railroad located right here in fleet621 USA I am not leasing their equipment.I beleive I have already bought and paid for that equipment and I am in no way shape or form competting for freight service with the UP.I am not bashing them for whats going on but I want to know why they waited until now to want a 3% royalty as far as I'm concerned if the UPRR went bankrupt rolled off the track and fell into the pacific ocean tomorrow it would not bother me heck they cant deliver my freight on time anyway.I am entitled to my opinion and I will continue to voice it like it says in the constitution look it up if you have any of them left when you finish burning all the books!

[Anonymous]

Fleet621

If you feel wronged ... tough;

You voluntarily entered into this forum; this debate and by doing so you give up all claims of defamation be it slander or libel against others who also express an opinion in this forum that you may not like or feel has been stated against you. You need to re-read your sister’s para-legal books, you missed the requisite elements to claim the tort of defamation.

You can’t both express opinions about something and then claim foul when someone allegedly hammers you ( by the way I didn’t know it was you, and I did not direct my comments toward you until now, I was answering in general) the way you are hammering UP!

Additionally “Fleet621” is not your name so at best only your handle has been defamed. That's an added defense in that “fleet621” could be anyone.

But we digress, Don’t buy UP if you like. It doesn’t change the merits of the matter one iota. UP has a right to its name and Lionel doesn’t just get to use it for FREE.

Alan

[brianel027]

I find all this interesting, but at the same time don't give a rat's hind quarters over it. I have nothing against the UP. It's not at all one of my favorite lines, but I do nonetheless enjoy seeing a UP unit when one rolls though this area, as they once in a while do.

What really gets my goat is that the once in a while when Lionel decides to actually make product in a road name I want and in a price range I could afford, they sabotage the product so I can't buy it. They then follow up with the same item in UP done exactly the way it should have been done before, just in the WRONG road name.

Examples: in 1996 I believe, Lionel issued a Jersey Central NW2. I was drooling when I first saw the catalog illustration, until I read the features... single motored unit. I then saw the engine at a shop. It was hard to say that the shell was even painted. What was obvious is that the CNJ red logo in the white field was a different shade of red paint than the body itself.
The following year, Lionel issued a UP NW2 with a matching calf unit. Beautiful looking units, obviously painted and with DUAL motors. WHY?? They had to cost more to produce than the CNJ units... just the paint masks alone!! Yet to add insult to injury, Lionel makes the product I want in the wrong road name. Fortunately for me, Microscale issued the CNJ coast guard scheme decals, so I made my own unit using a K-Line S-2 unit. Of course, the K-Line S-2 outpulls the single motored Lionel unit by a long shot... no contest. The single motored Lionel unit barely makes it up a trestle grade with a train in tow. My redone K-Line unit doesn't even struggle to do the same exact thing.

And I've mentioned before the Conrail U36B from 2 years ago. Again, same senario. Lionel finally makes an item that I truely wanted and was a must have, until I noticed the unit only had one motored truck. Beautiful looking unit too. The reason I like the Lionel 14-inch U36B is that is has the "look and feel" of a more modern diesel. It's length makes 027 curves. The loco walkway is part of the frame, not the shell, so that I can sand down some of the height of the shell, which actually makes the unit look much much better, especially on an 027 layout. And furthermore, with the CR unit, the lettering was all done high enough, so that I knew I could take down the shell height without repainting the whole unit. The shell has been changed now so that the screws attach from beneath the frame, so there would be no hole to fill in on the nose.

Needless to say I REALLY wanted that engine. And still do when Lionel decides to reissue the exact same loco with TWO motors. (hopefully I have the money someday)

But Lionel added injury to insult by issuing the UP GP-20 the following year with 2 motors. Again, a much more complicated paint mask for the UP unit. Painted frame, grey molded truck sides... the UP unit must have been more expensive for Lionel to proudce, yet they added the extra motor to the UP unit not the Conrail one. WHY????

Two examples of how Lionel has made items I wanted, made them poorly so I couldn't buy them, and then followed them up with the UP items made the way I had wanted the others, at the same exact price, but only with the UP roadname.

Whether Lionel ever makes another UP roadname product, I could care less. I am sticking to my guns on this. I am never ever again buying another new Lionel engine until the Conrail U36B is reissued again with the exact same paint scheme and lettering size, with dual motors. Or unless Lionel will send me a free motorized truck with all related parts for the Conrail unit. And I already inquired and you can guess the answer.

[Anonymous]

I like that Alan maybe the UP didn't know about the toy trains using their logo for 50 years try 100yrs highly unlikely that is the case they may say so but not likely.And as I stated in my earlier post The UP did not file until just after they publicly announced that they basically were losing their buts be cause of parked trains,no crews,and having to ship untold amounts of cargo by truck cross country because they failed to provide enough equipment and crews to properly provide service for the more than projected increase in demand of the shipping industry.And if you beleive that they simply didn't know that toy train manufacturers were using their logo for more then 50yrs then you need to get your head out of the law books more often and get some fresh air.There is more to this story then meets the eye if you do as I've done and go back and read all the stories about this situation there is a big chunk missing from both sides.I am not saying that the UP should not expect to get royalties from the use of its name and trademark logo but the fact is why wait more then 50yrs to do it.I'm sorry but no company as large as UP which porbably has a team of lawyers dedicated to them alone would wait 50+yrs that would have to be one heck of a stone wall.I'll laugh my but off if Lionel takes it all the way to court and whips out some letter signed by a former President/CEO of UP from about 50 or 60 yrs ago stating that the Lionel corporation maynot be held liable for trademark infringment for 100 yrs or somthing to that effect.That would be the way I would play it if the ball was in my court just to show the UP which has a strong reputation for stomping out the little guy that other people can play hardball too.And while it doesn't bother me personally it might others to where you receive a little flamage Alan the bit about those who dont create much that is sellable and being jealous of those who do was a little uncalled for.As a matter of fact according to the information I obtained in the paralegal classes I helped my sister study for and some of the reading I've done of some of the laws in my home state I do believe that is considered something along the lines of defimation of character correct me if I'm wrong Alan but that would give me grounds to file a lawsuit against you because I may have not created something sellable.Off the record of corse.Before this gets completely out of hand I am only expressing my opinion.And Alan I hope you did not take any of my comments to heart I didn't post to make anyone mad just to voice my opinion.And as for my help in this fight I will not buy any repeat any UP trademarked equipment for my road when and if UPRR wins this lawsuit.

[Anonymous]

Elliot

Once a design is fixed in a medium a copyright automatically exists without the author taking any steps at all. ( you need to register only if you are pursunig some infringment action and want to seek statutory damages)

There is something called common-law trademark that looks to who had it and was using it first in time. Up had the name and was using it before Lionel. (there is a BurgerKing in southern Illinois that is not the BurgerKing we all know!) The only issue is why did UP wait so long to claim an infringing action by Lionel; if it was to wait until the value of the infringment was high then the laches defense applies. Why did UP wait 50 years? Maybe UP did not know about thetoy trains using their logo or maybe Lionel stonewalled them for a while and UP got fed up and took action.

The design of a new locomotive is copyrighted and usually patented.

Alan

[Big_Boy_4005]

QUOTE: Originally posted by Amtrak Jack

And lets not forget the motive power manufacturers. Just as Racing Champions and other NASCAR producing toy companies have to pay for the use of car makers' vehicles (Grand Am, Lumina etc), Lionel should have to pay GM or whomever it is that makes these giant diesels. Afterall, it is the companies' design that we see in the toy models, not something Lionel invented (minus the phantom of course).[;)]

Jack, congrats on your 300th post. Actually, somewhere in all of this mess I saw a reply about this exact issue. Appearently there is no trademark or copyright on the design that can be enforced. Locomotive and for that matter rail car design isn't very artistic or competetive, it is functional. There may be a lot of patented elements that go into creating real trains, but models don't need any of that. Model trains seem to get a free ride here.

[Big_Boy_4005]

Alan, congrats on your 100th post, sorry it takes such hot button legal topics get you really active, but we know that that is your line of work, and it is interesting to hear your legal insights into the case.

So what I think I hear you saying, and correct me if I'm wrong, this case could go either way. Both sides have valid points in the eyes of the law. If this is true, neither side would be likely to want to settle, and the case will procede to it's conclusion and a verdict.

I suspect that the complaint has hundreds of alegations, some easily proven, some easily denied, and some rather sticky. There are really two major issues here. The modern and past UP, and the fallen flags that the UP has absorbed over the years. I would think that it would be much easier for UP to win its own name, but not so the fallen flags, and a split verdict is a real possibility.

I have actually been saying this all along, but this is an emotionally charged issue for train lovers. I think we know where everyone's personal opinions stand, but it's the legal opinions that are most interesting here. I think it's safe to say that both legally and emotionally this is a real can of worms.

On the emotional side, will the financial gains from a legal win by UP be worth the PR loss suffered in the battle?

[Anonymous]

And lets not forget the motive power manufacturers. Just as Racing Champions and other NASCAR producing toy companies have to pay for the use of car makers' vehicles (Grand Am, Lumina etc), Lionel should have to pay GM or whomever it is that makes these giant diesels. Afterall, it is the companies' design that we see in the toy models, not something Lionel invented (minus the phantom of course).[;)]

[Anonymous]

Despite the Greedy claims by those who feel intellectual property (IP) is a myth; typically raised by those who don't create much that would ever be saleable; jealous of those that do; IP is not a myth as demonstrated by various US patent, trademark and copyright laws of this and many other countries.

Up may be barred from succeeding against Lionel because of something known as an estoppel defense; If UP waited too long or long enough that it appears that the damage is greater now and would have been less if you started your action earlier, then Lionel may be able to use this defense and a laches defense;

The problem is when it comes to IP damages the damage is presumed. Also, Lionel knew or should have known that using the UP logos belonged to UP and that they were using them without licensing;

If UP is successful in this suit then will go after MTH and others next;( the reason UP chose two and not all of them is to minimize the defendants, if all the defendants are in then they could more easily share legal costs); Also, not to mention that if UP wins, then look for all the other road names to file suit.

This boils down to Lionel cashing in on other's good names without paying for the right to do so. You can call it what you will; but greed is not fair except as against LIONEL.

Alan

[FJ and G]

Yes, Lionel and Athern are the whipping boys to be made an example of.

I think they get a perverse kick out of punching on an icon.

[ben10ben]

Good point, David.

As a result of your post, I went and pulled up the list of companies currently licensed with UP.

http://www.uprr.com/aboutup/licensing/suppliers.shtml#models

None of the 3 rail O gauge manufacturers, and they, as far as I know, are still turning out models every bit as frequently as Lionel.

The only logic that I can see behind their choices is that Lionel and Athearn probably mean the most to the general public. People who have ever had any slight interest in HO know who Athearn is, and half the know world knows who Lionel is.

[dougdagrump]

If they are so concerned, as they say, about appearance why are they asking for "Licensing Fees" ? Why not go forward with an agreement that pertains only to authenticity of design and application.
As for the "Fallen Flags" issue that certainly does give the appearance of greed whether it is real or not.[B)]
Forgot to add, for those who have investment holdings check to see if you have any of their stocks. Let the board know your opinion !!!!!!!!![:D]

[FJ and G]

No one has addressed this too:

Why are Lionel and Athern being singled out by Lionel. I'll bet other companies haven't paid up.
-----------------------------------------
My solution to satisfy all modelers (those who enjoy UP fees and those who hate them) would be for the price markups to occur only on UP models, not spread over all roads. That way, unless you are a UP diehard, you'd have 2nd thoughts about getting a UP train, and UP would lose fees and positive publicity. Let the market dictate!

[Anonymous]

I posted this over on OGR. It probably makes more sense to post it here.

QUOTE: Whether you like the UP or not, they are entitled to protect their trademarks, and they are entitled to collect royalties on those marks. The UP has filed for trademark protection on the fallen flags & is repainting cars with the fallen flag logos. This clearly shows intent to use the trademarks, at least to me.

I'm sorry, but I have to agree with TAG18 & the others that say UP is within their rights. I believe UP will win this case & Lionel & Athearn will have to pay. And so will we. You may not like it, and you can of course boycott UP labeled stuff if you want.

It's amazing how upset people are getting over this issue. You'd think the UP was trying to take away the food from your family table. Last I looked, toy trains aren't a necessity for life. If you can't afford $5 - $10 more for a $500-$1000 locomotive, maybe you shouldn't be buying the $500-$1000 locomotive in the first place?

Just my $0.02 worth.

Now, it's been pointed out that the license agreement that UP has on their site calls for 3% royalties and some pretty intrusive verification practices. This means my $5-$10 is more like $15-$30. I still don't see that the price increase would be that onerous.

Regarding the intrusive verification processes, you can at least negotiate with the guys in order to come up with something more pallatable. Lionel & Athearn are not negotiating at all. Either they really do think that they would win any suit brought against them, or they're just plain stupid. Maybe Lionel is hoping that MTH wins their suit & so Mike Wolf would have to deal with the UP suit.

In any event, I still think UP will win the suit and we'll end up paying.

Oh, and if Mike Wolf ends up owning Lionel, I think I'll switch to HO. At least DCC decoders are $12.50 a pop. I can probably get a DCC command station by selling everything O gauge I have acquired since last year.

Tony

Tony

[Anonymous]

"You have to charge everyone OR no one. Why now? "

You don't have to charge at all to protect your trademark. You can also set the fees to whatever you desire. There are a lot of license's that do no involve the exchange of money, just an acknowledgement of ownership and a review of the material to determine acceptible representation.

[Anonymous]

GREEDY,GREEDY,GREEDY that is exactly what UP is.Has anyone managed to connect the fact that UP has a major shortage of train crews on their hands and when was the last time you drove out west on a major interstate highway that runs next to UP right of ways.Did you notice the number of trains parked in the middle of nowhere while their crews take their mandatory break.UP at this time contrary to popular opinion is losing their shirt due to the shortage of 4000 train crews 4000 big number isnt.A close freind of mine drives truck to the west coast every week and when he gets home he tells me that he see's more and more of UP's trains parked along the tracks every week the number is rising.UP has to recupe their loses somewhere.All this law suit stuff started about the same time that UP gave the press release about being short 4000 train crews and losing part of the ups contract that BNSF so graciusly stepped up to handle.UP says that on a ten dollar item the fee is only pennies on the dollar.So what about a $1499.00 dollar locomotive time 200 locomotives.It may not sound like a lot but believe me when you start adding it all together it will add up to a good chunk of money.And the fallen flags bit is rediculous.[:(!]
And 3railguy I'm very sorry to hear that kind of news you will be in our prayers.

[FJ and G]

UP is so pathetic they are saying the reason they are charging fees is to protect the UP look in Lionel trains and others.

Come on! Lie to us some more UP!

The reason they are collecting fees is simple: to bilk us. Nothing more, nothing less.

Do you think for just a minute that UP would, say, refuse to allow UP's logo on a Beep because UP never had Beeps? No way, man. They'd gladly collect their fees.

(BTW, I'm just using Beep as an example; I don't know if the company that makes them actually paid its fees).

Dave Vergun

[bobblaisdell]

Win or lose in court, UP is losing in the court of public opinion. In my mind, their grand history is tarnished by this action. This lawsuit is a BADWILL gesture, the GOODWILL is over. In the blink of an eye, UP has managed to destroy it's image. Nothing anyone says will change my mind about this.
--------------------
I agree with this 100%. Even if UP wins they lose more than they win IMHO.
Ship it on the UNION PATHETIC [:(!]
Bob Blaisdell

[Anonymous]

QUOTE: Originally posted by Sask_Tinplater

I respect that you are entitled to your own opinion, Jack, but you have to realise we are not denying the fact that UP does have the right to charge for the use of its logo. We are simply very angry that they have decided to do this and think that it's stupid, that's all.

I agree. Angry I can see. Saying they are WRONG is another matter. Thanks![:o)][:o)]

[Big_Boy_4005]

QUOTE: Originally posted by Sask_Tinplater

I respect that you are entitled to your own opinion, Jack, but you have to realise we are not denying the fact that UP does have the right to charge for the use of its logo. We are simply very angry that they have decided to do this and think that it's stupid, that's all.

Sask, you are wise well beyond your years, and you write well too!!!![^]

Jack, I'm sorry that you have had trouble in the past regarding trademarks. They must have been very good art work for someone to want to use them. Small businesses have a very difficult time with trademarks, because they are so expensive to create and defend. Many people will take them, just to test you and see if you will respond. That part sucks.

UP is bigger than that, and the fact that they want the rights to the fallen flags shows their true motives here. The dollars involved are trivial, and the damage to UP is NIL. Actually, Santa Fe set the reverse precident when the F-3's came out, and used their arrangement with Lionel to promote their public image. Successfully too.

A lot of people beside me and Sask are angry about all of the negative publicity that UP has created by pressing this issue. This has been on the back burner for the better part of a year, but filing this week has moved it right up front.

Someone posted a link to a story a while back about some of the stockholders being angry over this issue at the annual meeting. If the stock holders think this is a bad idea, why press it. I don't think the national media has gotten a hold of this yet, but if they do, heads may roll at UP.

[3railguy]

I JUST GOT BACK FROM THE DOCTOR......... I'VE BEEN DIAGNOSED TO HAVE CANCER.....FROM UNION PACIFIC DIESEL EXHAUST SMOKE!!!!!

[Anonymous]

I respect that you are entitled to your own opinion, Jack, but you have to realise we are not denying the fact that UP does have the right to charge for the use of its logo. We are simply very angry that they have decided to do this and think that it's stupid, that's all.

[Anonymous]

QUOTE: Originally posted by Big_Boy_4005

Hate to say it Jack, but the CTT masthead ain't worth 2 cents to me. I don't want to buy it!Would you like some enterTRAINment hats, coffee mugs, t-shirts or post cards. I still have plenty.

This is a free market, UP owns their trademark and has every right to TRY to collect every penny for their name. I have never claimed otherwise. We know that people are willing to pay for the use of Coke, Pepsi, Ford etc. Which of these is more valuable the Minnesota Twins or the New York Yankees, and it is an acceptable answer to say that they both suck.

My problems with UP's position are:
1) Why did they wait so long to do this?
2) Why are they seeking to the rights to the fallen flags?
3) Why aren't BNSF, NS, CP and CN taking similar action?

The only conclusion that I can draw from all of this is GREED!!!! And if there is one thing in this world that I can't stand, it's GREED!!!!! UP can call their action any damn thing they want. They can try to convince people that they are DEFENDING THEIR VALUABLE TRADEMARK. But in MY eyes they look like IDIOTS!!!!!! GREEDY IDIOTS!!!! I am not alone in this view.

Win or lose in court, UP is losing in the court of public opinion. In my mind, their grand history is tarnished by this action. This lawsuit is a BADWILL gesture, the GOODWILL is over. In the blink of an eye, UP has managed to destroy it's image. Nothing anyone says will change my mind about this.

You are entitled to your opinion Elliot. But you are wrong my friend. The thousands of dollars I spent to secure my trademarks and the couple of times I have had to defend them from illegal use puts me on the side of UP.