Union Pacific Sues Athearn & Lionel!

[jerdenberg]

From the MR article, with some comments in brackets:

"willful and deliberate, designed specifically to trade upon the enormous goodwill [fading fast?] associated with Plantiff's [someone's typo] trademark.” It also alleges that their use of the UP trademark on model trains “is likely to cause confusion or deception of purchasers as to the source of origin of its goods” [do they really think we believe the models are made by UP?] and that purchasers are likely to buy trains bearing the UP's trademark “believing that they are sponsored by [certainly not], affiliated with [how would they see that?], or endorsed by [OK, valid point]” the UP. Union Pacific also expresses concern that it has “no control over the quality of the goods sold" and because of the confusion as to the source, Union Pacific’s “valuable goodwill in respect to its . . . trademark is at the mercy of the Defendant.” [its goodwill has suffered far more from the Plaintiff's actions than from the Defendants, I would say].

As did somebody above, I resent the fact that they do not stop at protecting their name, but want to squeeze money out of it too.

[gmpullman]

Maybe UP will want us to pay a fee for photographing their logo on passing trains. We, as modelers, are re-creating reality, weather past or present. If this re-creation happens to include real-life corporate images I don't feel that we should have to pay a premium for this. Think of the consequences. GE gets a cut because it's their locomotive design. Ditto Trinity or Trailer-Train. Hey, you modeled my building design, you owe the architect a fee. Your rails are a Dudley profile!!! Pay a FEE!
I wonder if Pullman would have sued Walthers for making the Piker and Osker in such a way as to harm their "corporate image"? Where will it end???

[Allen Jenkins]

.org!

[Anonymous]

I say war !!!!! meet for battel outside of the UP offices !! bring machine guns, swords, rifles, cannons, spears,grenades, and bayonnettes !![oX)][oX)] we will storm the UP offices tomorow at noon !!! RAID !!!! ATTACK !!!! we will defeat the UP people and take the presidint hostage and make him agree to our terms !!!!!!! we will make him repaint locos for the Rock Island, KATY, WP, SP, and others. the Unoin pacific empire will fall[bow][bow] Meet me for battle, men !!!!!! let us defeat the evil UP !!!!!! for honor !! for glory !! for model railroading !!!!!!!!!!!!!!!!!

[Anonymous]

Actually, the US Patent office denied the right to retain the rights to the Katy name and trademarks.
Ch

[Anonymous]

OOOK!

[Allen Jenkins]

http://www.pioneerlocal.com/cgi-bin/ppo-story/localnews/current/ba/06-03-04-307130.html , so, what's all your paranoia about the fact your using a product un- regulated by and unauthorized by the very entity that carved a life out of this great land. Here, in a moment of hesitation, a corporate, is to pay out the *** for just what a part of the environment has incurred opon the rights of way, and so needed it is, to compensate for punitive damages, which will never be repaid. Sony finances a video, played on MTV, "Big Locomotive," 1989, which depicts a UP DD40X in a high speed collision on a basement model railroad. Get It? A BASEMENT MODEL RAILROAD! Shows the world how.... Then Areosmith, bless their hearts, produced "Living on the Edge." ....and so. What would you do? The law can't touch this, the only legal rercouse is to do formally what is being done. And, at the expense of higher pricing (also called the cost of doing business), remember, these companies, howerver cherished, however loved, are actually, flagrantly breaking the very copyright laws they would use to sue your very *** off with. So use the bandwidth for something constructive. Save a life, or something. Many threads are under-way to suggest Uncle Pete should just kick the bucket! Enjoy Getting Over It!acj.

[trainfan1221]

Quite frankly, I always found the whole CR-NYC- PRR notations confusing. I know one is NS and the other CSX, but they always seem intermingled. Incidentally, neither of the two big carriers can enter north Jersey terminals without using CR trackage.

[Anonymous]

QUOTE: Originally posted by rf16a
I noticed that a New York Central loco had a CSX licensed product notation.

Now thats the reason you have copyright laws. CSX is taking the trademark away right under Conrail (yes, they still exist as a terminal railroad in NJ, PA, and MI) and NS's noses. From what I've heard Conrail has the rights to fallen flags they took over and since NS owns 88% of CR they have the roghts to the logo's.

[rf16a]

I can understand Union Pacific wanting to protect the Union Pacific name, but I can not understand and do not think it is right for them to claim licensing fees for predecessor roads. I hope the courts tear UP a new one over that.

Surfing the Atlas web site, I noticed that a New York Central loco had a CSX licensed product notation. How can CSX claim licensing fees over a railroad that ceased to exist 36 years ago? CSX is now going to go the route of the UP and try to dig a few pennies more out of the pockets of model railroaders? B+O, C+O, WM fans, hold on to your wallets!
Does this mean that Penn Central Corporation or whatever they call themselves now could claim PRR, NYC, and PC logos/names?
Does this mean that Norfolk Southern could (God forbid) trademark the Pennsylvania Railroad name?
Again, I think the railroads are justified in protecting their company trademark, but leave the Fallen Flags alone please.
[:(!][:(!][:(!][:(!][:(!]

[dharmon]

And to top it off......whether you like, hate, model or don't UP, Athearn or Lionel...guess what? You are already going to pay for it. Courts cost money to run and guess who pays for them.....assessing court costs to the loser......get real.....you or your parents are going to pay for this in taxes......so not only is this silly..it's already costing you money.

[Anonymous]

It's too late......The UP should have done this many years ago.I hope the lawsuit is thrown out.the problem is....The UP waited much too long.Remember these words,You snooze....You loose,And NO second chances ever again!BNSFfan.

[CP5415]

Hmmm!
I can see UP's point in all this. It's their registered trademark & they don't want anyone using their trademark to profit from it unless UP sells the manufacturer a licence to use it.
Every corporation is like that. Do you think Lionel, Athearn or any model railroad manufacturer would want others using their logos to make products with?
I highly doubt it!
If I turned around & started making model railroad items under the Athearn, or Kato name, do you think they won't object?
In my opinion, this topic is mute.
If you don't like what UP is doing, don't buy anything with the UP logo on it!

Just my 2 cents

Gordon

[Anonymous]

QUOTE: Originally posted by 4884bigboy

I
2. Athearn (and Lionel??) charges extra for UP models but does not pay the liscensing fees. UP sues Athearn and Lionel.

Read my above post.

[Anonymous]

I think this is really Athearn and Lionels fault. True, it was UP who started all this copyright bussiness, but, well, let's look at the facts.

1. UP announces they will charge extra for use of their logo. I can understand this, it's what most big companys do.

2. Athearn (and Lionel??) charges extra for UP models but does not pay the liscensing fees. UP sues Athearn and Lionel.

See? So really it's all UP's fault, but in some ways, a lot of ways, it's Athearn and Lionel's fault for not paying. This is only the way I see it.

[Anonymous]

I wouldn't blame Athearn, from what I've seen EVERYTHING went up in price during the last few months, not only UP. Look on Athearn's website for yourself.

[Anonymous]

I'm not sure why UP is pushing this right now. However, there are real issues here. If a copyright holder doesn't protect the copyright, they lose legal control of it. I make part of my living by creating intellectual property, including graphics. Why should someone profit from my work and not compensate me for the effort and investment it took to create the material? What UP could and probably should do is to license the use of the copyrighted material for a small fee. They could charge a dollar, establi***heir defense of the copyright and be the good guys. BTW, what could happen is that a court would find that the use of UP graphics by modelers has been so common for so long that UP has already lost control.

[philnrunt]

Does anyone know where I can get a trench coat, with inside pockets large enough to hold , oh, say 15-20 HO coal and box cars painted in the scheme of a ...ahem..well known western railroad?
And what dark street corners do most model railroaders hang out at?
"Psssst, mister-wanna buy a hot pre-ban Bethgon? No questions asked!"

[88gta350]

QUOTE: Originally posted by Big_Boy_4005
Here's where I disagree with you. The model manufacturers are not "cashing in" on the railroads trademarks. Not UP's, not any of them, past or present. They are creating scale replicas of trains. The model can be painted any way you want. The paint is all UP can claim any ownership over, the model is original work from the manufacturers. If anyone should be claiming anything, it should be EMD and GE, but they aren't, and no steam engine manufacturers are left to fight. A box car is a box car, all the same under the paint.

Manufacturers are indeed making scale replicas of trains, but they're putting UP logos on them in an attempt to sell them to UP fans and modelers. If it's got a UP logo on it, they have the right to collect. EMD and GE can't collect because the models don't have they're logos on them. Unless they have the likeness of that locomotive trademarked (which some companies do), they can't collect unless it's got a GE or EMD logo on it.

QUOTE: I won't argue that UP has the right to control it's current trademarks. I will argue that they should not have the right to control the trademarks of the fallen flags. Those have fallen into disuse, and should pass into the public domain, in spite of the fact that UP is trying to renew them.

This is where it gets sticky. I'd have to agree with you that UP's legal claim on the fallen flags is tenuous at best. High-priced lawyers may be able to argue differently, however.

QUOTE: The real problem I have with UP's argument about their current trademark is, WHY did they wait so long to exercise their rights? This may be the manufacturers defense, and the judge could agree, and tell UP they blew it by waiting so long. They have only had 100 years. I expect that this is a test case. A win by UP and all the railroads follow, lose and they drop it for a very long time.

UP's ego has gotten way too big. They think it's their name that sells models. It's good models that sell models. Beside, there is a lot more than just UP out there.

The fact that UP has waited so long will hurt them. it shows past practice. However, in the end, I don't think any court will NOT find in favor of UP. A business the size of UP has to be able to protect it's trademark. Not allowing them to do so would be a huge blow to business and I don't think any court is willing to take that step.

And I agree that there is more than UP out there. If you are that upset at UP for doing what they have a perfectly leagl right to do, model something else.

[dharmon]

I'm not a big fan of UP, but they have a right to enforce the trademarks they own. As a big fan of Athearn though I am disappointed, becasue it attacks the credibility of a company I have "trusted" for quite some time. I would hate to find out that they were charging more for UP items but not paying the licensing fees. With only one side of the issue, UP's, on record, it really isn't fair to speculate but I see this as a sign of coming changes...not the price increases so much, but the introduction of litigation and all that goes with it into the hobby. First MTH and now this.......Just not good.

[MAbruce]

QUOTE: Originally posted by BNSF9838

MAbruce YOU ARE DEAD WRONG. you said that "we are not their costomers"NOOOT.
our models come from over seas in which got transported by HELLO rail.
WE ARE "THERE" business! if anyone can agree or can not agree with me please let me know.
Our model's were transported in double stack trains,and make it By RAIL.
BNSFfan.

I suppose you have a point – or maybe not?

In the millions of containers that arrive in this country from overseas each year, how many of these containers do you actually think the MRR industry is responsible for??

Now I’ll admit that I do not know the exact answer, but I’d say (in percentage terms) it’s a good bet that it's far less than one percent. Of course this assumes that a railroad even touches all these containers.

Again, we are not even a blip on their radar!

[Big_Boy_4005]

QUOTE: Originally posted by 88gta350

Big Boy 4005, UP's name is a registered tradmark. If someone other than UP wishes to use that name in order to sell it's own product, they must have consent! There is no question here. It doesn't matter what product you create or produce. Whether it's coke, Ford, John Deere, UP, or the hundreds of thousands of other companies in the country, your trademark is registered... it's your identity.

MRR companies put UP designs on cars and locomotives because they want to sell to UP modelers. These companies are making money off the UP logo. To do that, the logo must be liscensed from UP. There really is no grey area here. In the past, UP has allowed this to go on without charging the royalty fees that it could have been. Because they weren't charging and weren't enforcing the law, they really had no say in how their logo was being used. Now, they've decided they want to control that. This is entirely within their right.

You may question why they are doing it now, but I would bet their is a lot of issues that go on behind the scenes that we don't see, that led UP to make this decision. Perhaps they've discovered their logos being used somewhere that they didn't like. Enforcing the law on everyone is the only way they can control it's use.

A few years ago a coffee bar opened and named itself Federal Expresso. Fedral Express sued, claiming the name was too similar... that the coffee bar was cashing in on Fed Ex's name. Fed Ex won the case. You can not make money from someone else's name without their permission and without reimbursing them. MRR compamies are doing just that. They are using UP's name and logo to sell MRR supplies.

Here's where I disagree with you. The model manufacturers are not "cashing in" on the railroads trademarks. Not UP's, not any of them, past or present. They are creating scale replicas of trains. The model can be painted any way you want. The paint is all UP can claim any ownership over, the model is original work from the manufacturers. If anyone should be claiming anything, it should be EMD and GE, but they aren't, and no steam engine manufacturers are left to fight. A box car is a box car, all the same under the paint.

I won't argue that UP has the right to control it's current trademarks. I will argue that they should not have the right to control the trademarks of the fallen flags. Those have fallen into disuse, and should pass into the public domain, in spite of the fact that UP is trying to renew them.

The real problem I have with UP's argument about their current trademark is, WHY did they wait so long to exercise their rights? This may be the manufacturers defense, and the judge could agree, and tell UP they blew it by waiting so long. They have only had 100 years. I expect that this is a test case. A win by UP and all the railroads follow, lose and they drop it for a very long time.

UP's ego has gotten way too big. They think it's their name that sells models. It's good models that sell models. Beside, there is a lot more than just UP out there.

[Anonymous]

An interesting aside to this problem - Canadian Pacific has recently being licensing the use of their logos. BUT - they do not charge for the license, they just want to see that their logos are used correctly. On recent Microscale decals with the CP "Golden Beaver" logo it is printed right on the decal sheet that it is licensed from CP.

So there is another way to deal with "protecting" a firms logos!

Bob Boudreau
Canada

[88gta350]

Big Boy 4005, UP's name is a registered tradmark. If someone other than UP wishes to use that name in order to sell it's own product, they must have consent! There is no question here. It doesn't matter what product you create or produce. Whether it's coke, Ford, John Deere, UP, or the hundreds of thousands of other companies in the country, your trademark is registered... it's your identity.

MRR companies put UP designs on cars and locomotives because they want to sell to UP modelers. These companies are making money off the UP logo. To do that, the logo must be liscensed from UP. There really is no grey area here. In the past, UP has allowed this to go on without charging the royalty fees that it could have been. Because they weren't charging and weren't enforcing the law, they really had no say in how their logo was being used. Now, they've decided they want to control that. This is entirely within their right.

You may question why they are doing it now, but I would bet their is a lot of issues that go on behind the scenes that we don't see, that led UP to make this decision. Perhaps they've discovered their logos being used somewhere that they didn't like. Enforcing the law on everyone is the only way they can control it's use.

A few years ago a coffee bar opened and named itself Federal Expresso. Fedral Express sued, claiming the name was too similar... that the coffee bar was cashing in on Fed Ex's name. Fed Ex won the case. You can not make money from someone else's name without their permission and without reimbursing them. MRR compamies are doing just that. They are using UP's name and logo to sell MRR supplies.

[Anonymous]

MAbruce YOU ARE DEAD WRONG. you said that "we are not their costomers"NOOOT.
our models come from over seas in which got transported by HELLO rail.
WE ARE "THERE" business! if anyone can agree or can not agree with me please let me know.
Our model's were transported in double stack trains,and make it By RAIL.
BNSFfan.

[Fergmiester]

Another Perspective

When you see products with your name on it on E-bay going for several hundred and even several thousand dollars and others (collectors) reaping the benifits it's a hard pill to swallow. So I believe UP has used a blanket policy. If you wi***o talk about greed try setting your sights at the Oil companies!

What's good for one is good for everyone!

And yes greed is at the root of this but it is becoming more and more of how much blood can I get out of a stone. Everyone of us is doing it to some degree or another so lets be happy with what we have and move on!

And on a final note: How many of us are paying for the name? look at your appliances. cars, tools etc. chances are we don't always pay the higest $ for the best we pay for the name, not for the most expensively made, or the highest quality but the name.

Before you get all bent out of shape just think about it. How many power tools are made by the same company, using the same material and parts. Alot but you wouldn't catch me dead using brand X, Noooooo, it's gotta be Brand A. And someone makes there money just on that fact alone.

[MAbruce]

I think we all need to get a realistic perspective about this issue.

I think it could be said that Model Railroaders and Railfans are not on the top of UP’s “people we need to keep happy” list. I think we probably rank about 57th, just behind the people who do their landscaping…

So let’s face it – we are not their customers, we are not key government officials, we are not key stockholders, and we are not key union leadership. So what makes anyone here think that they would give a rip about who they probably think are a small bunch of weirdoes who play with (or watch) trains and have absolutely no noteworthy influence on their primary business???

The truth hurts sometimes.

[Big_Boy_4005]

QUOTE: Originally posted by Fergmiester

Question?

Why aren't we bashing
Coca Cola
Nascar
John Deere
Ford
and everyone else that's charging royalties for their use of their name.
UP is just one of many.

If someone was using your identity wouldn't you want some sort of control or say of how they portrayed you?

Just curious

Just becuse a company has a recognizable trademark, does NOT mean that that trademark has commercial value. Coke, and all of the other companies mentioned market their products directly to individuals, they are popular household names. I don't see anyone mentioning American Airlines or Sears.

Ford and John Deere are more interesting, because they have models made of their products. But the key word is PRODUCTS, a normal person can really buy those things. That gives them real popularity. When was the last time you called UP to move your freight. If you don't live in the right part of the country, UP CAN'T move your freight. Ford and Deere are known around the world, and their products can be found there too.

How far does UP's popularity extend beyond model railroaders. Hell, 90% of the modelers don't even do UP, they do other railroads. They might have a few cars on their layouts. UP may have been around for over 100 years, but it has no mass appeal.

Union Pacific is whining because they think they are missing out on some money, not because they are being misrepresented. Some poor misguided fool at the head office thinks this is a way to turn a few bucks. The beauty of this plan is that since modelers don't actually have any impact on revenue, they are expendable. Which translates to, "to hell with modelers we don't need them".

If I understand this whole thing correctly, this won't last long. The judge may laugh them right out of court. Their argument stinks!

By the way, this isn't bashing. This is having an intelligent discussion of the issues. Bashing would be simply saying UP SUCKS!! The difference is I'm explaining why UP sucks.

[Anonymous]

All it is,is big mouth power control,The UP has the MOUTH & the POWER to CONTROL it. But their Day is coming.Payback will be a [censored].BNSFfan.

[jsanchez]

I think Athearn/Horizon should refund the extra money they were charging for their models , if they never bothered to license the products with UP logos in the first place. With all the John Deere and Coca Cola stuff they sell, you think this would have been resolved. I'm glad I'm not in their shoes, UP usually has some of the best corporate lawyers of any firm, not to mention very deep pockets and all the right political connections. This should be entertaining, maybe one day it will be a Law and Order episode....I think Lionel will be ok since they had an earlier legal arrangement with UP going back to the 40's, that should still be valid.