UP Sues Athearn and Lionel over Trademark infringement

UP has a right to protect it's brand name, logos etc. Period!
But, the MRR manufacturers are ADVERTISING the UP
brand for free. So, somewhere down the line, there
should be room for a symbolic license fee.
And doesn't ATHEARN, for example, advertise for their
FORD trucks (in HO and N) with "licensed by FORD Motors
Company"? So why don't they bargain for a license with UP?
Or didn't we just not hear about it?

Anyway, don't freek out over this issue. Most likely it's
a lot of smoke and only a very little fire.

I guess to the railroads, railfans are lower than groupies, at least groupies buy tickets. To the RR's railfans are trespassing looky-lous who are a pain in the rombus.
They should take a lesson from baseball, railfans are father, and when they stop bringing their sons with them the RRs lose. Little boys grow up to be politicians and voters. It could only help the RR to have grown little boys with a soft spot in their hearts for the RRs.....

I have a couple of questions:

Are Athearn and Lionel the only manufacturers who refused to come to an agreement with Union Pacific? Or are they the two UP is going after?

What is the fee per unit? Is it a percentage of the wholesale price or a flat fee?

From one of Mainline Modelers earlier editorials, this trademark and licensing agreement is a little different in that UP can claim the dies, paint masks etc, as their own if for any reason the manufacturer stops making a UP licensed item or one of their earlier roads such as CGW, CNW, MStL,
DRGW, SP, WP etc.

I have no probem with UP making sure their trademark is recognized but no other transportation or industry company has resorted to the fees and conditions that UP has done, if they are not stopped now who knows where they will go next. Will I have to give up my old decaled GE lamp car because Champ did not pay GE for the use of their symbol?

Rick

Oh do I got alot to say....

1.) Rob (rcbsd45) you know who this is, hehe, I didn't know you modeled trains too. Thats cool, and whatever level of skill you have, you are always welcome here. Don't let the "Super Modelers" dictate who can and cannot make comment. Last time I checked, Otto was forum moderator, not that Jackass who shall remain nameless.

2.) Looks like U.P. needs to sue GATX and FEC Rail as well, since their locomotives are still painted in UP colors, with different reporting marks. (In FEC's case, its been like 3 years now)

3.) 60 Minutes did a blurb on their TV Magazine a while back, and the representative from U.P. looked like a greedy S.O.B. Unfortunately, despite my pressuring them to do a follow up, they (60 Minutes) have not.

4.) I don't think mainstream media will pick up on this.They're too busy on "International" issues right now, and the upcoming presidential election.

5.) I am suprised Trains magazine actually said anything. When this was first reported, NO ONE at KALMBACH had the balls to make comment, except Mark Horrowitz from Garden Railroading. The rest of the staff at Kalmbach are too busy with their lips planted on the rear of U.P.'s arse, trying to arrange for that next "special photo shoot" on U.P. property somewhere. Kalmbach Punked out, period.

6.) Again, if U.P. was solely interested in protecting the current day trademark, I wouldn't have a problem with paying an extra 5 bucks. But because they are trying to ressurrect every single logo they can, so they can make more on royalities, its clearly obvious that they are looking for a quick buck.

7.) And this business about the manufacturer having to turn over all tooling, molds, etc as per "the licensing agreement" this is a crock too. Whats a matter, U.P. can't run a real railroad, so now they are going to try and run everybody's model railroad too?

8.) ANYONE, who sits on this forum, who defends U.P.'s trademark licensing agreement, as it stands now, is either:

A.) Ill-informed about what the contract says, or

B.) is a Self-Hating model railroader.

I suggest you read it online at the U.P. website, (atleast it was there for a while).

9.) And finally, I want to see some "Super Modeler" on this forum tell me I cannot post my thoughts. Don't come here, and try to segregate the community based on YOUR OPINIONS of who is a "good modeler" and who is not.

Only those who are weak in the real world around them, seek comfort through the heavy handed enforcement of their of their beliefs to those on the internet.

Get a Life.

click...click...

What are the chances that the BNSF doing the same thing in the near Future????? .

If the UP suceeds, look for evry railroad to follow suit. All the suits (read lawyers) care abount is the bottom line, no matter how they get it. It is somewhat amazing that most CEO's now come from the legal side of the business and not the operating side of the business.

Rick

JDFX wrote: 8.) ANYONE, who sits on this forum, who defends U.P.'s trademark licensing agreement, as it stands now, is either:

A.) Ill-informed about what the contract says, or

B.) is a Self-Hating model railroader.

And how do comments like this make you any different than the "Super Modelers"? Hows this for a comment....

ANYONE who sits on this forum, who is against U.P.'s trademark licensing agrement, as it stands now, is either:

A.) One of the parties that is producing said unlicensed goods, or

B.) is a over-reactionary alarmist.

C.) Wouldnt care if their name and picture was used to sell other people's or company's products without renumeration.

I will conceed that the fallen flags being included in this is greed.

I would be cautious to say that their policy includes the molds. As we know many models are from the same mold and painted differently. The only manufacturers that clause could apply to are brass manufacturers who make specific exact models of certain prototypes.

Nobody's going to break down your door and confiscate the models you already own and there will be no shortage of models being produced. They may be a bit more expensive but you will still be able to get them.

Read my other posts if you still dont understand my point of view.

Get the Sept 03 issue of Mainline Modeler, the editor states that a manufacturer told him that the molds would be UP's at UP's discretion.

This is a good two page editorial stating the facts, opinions, and possible ramifations.

Rick

I somehow doubt that the molds would become UP property--they have no intellectual property claim to the shape of an SD40-2.

The painting pads, masks, etc maybe.

My 2 cents worth is that this is not even properly called "greed." This seems like somebody's legal department has too much time on their hands, and has lost all sense of proportion.

Yes, UP has the right (actually, the obligation) to defend its active logos, etc against pirating and the like. And yes, they probably have the rights to the old predecessor logos as well. But looking at it as a revenue stream has to be one of the most idiotic ideas I've ever heard. How much money can they be talking about here? Certainly not enough to pay for the billable hours of the idiot savant lawyer who thought this up.

In most large corporations and gov agencies, the legal staff will always stake out a combative, in your face position on any potential dispute. That 's their job, just like it's the job of the Rottweiler down the street to snarl at passers by. But it's the job of the management to know when the snarling dog is becoming counterproductive, and tell the mutt to sit down and shut up.

I will gladly donate arolled up newspaper to anyone in Omaha who has a sense of proportion to use it.

We'll if that article is accurate and not embellished or taken out of context then UP's lawyers really are dumb. However, the manufacturer this editor supposedly spoke to may be fudging some of the details to cause the sort of panic we're seeing here.

Then again editorials are more opinion than fact and I don't think they should be taken for more than what they are, opinion and un substantiated reports. Did they mention the manufacturer by name?

I seriously doubt UP can sieze molds that aren't specifically made for their products/roadname. Pad printers, ok maybe if they're not reconfigurable and print only UP paint schemes. If anyone would sieze the raw molds, it would be motive power manufacturers, not UP.

I'll leave it to the model maker's lawyers to point out to UP that their idiots in their knowledge of model making and molding.

But I'm still not panicing and I don't think you guys should either.

I'm copying a post from the Altamont Press forum (a prototype forum that finds this model subject interesting!)

After a long consult with the aforementioned attorney... ;-)
She said that UP's case is very weak. There is specific and recent Supreme Court ruling that trade dress infringement only applies when it can be shown that there is monetary loss resulting from image confusion, loss of business, or damage to image. So until and unless UP gets into the business of manufacturing and selling models, there is no possibility of confusion to their customers or prospective customers, nor any loss of revenue. (Collecting licensing fees does not count as income or potential income in this case. The right to collect these fees is predicated on the ability to enforce exclusive use, which UP does not have.)

We agreed that it is clearly UP playing the "corporate bully" card against companies lacking the resources to call their bluff. So sic 'em, Athearn and Lionel!

This sounds reasonable. At this point I am assuming Athearn and Lionel have legal advice that is telling them about this. If this is the case, it could be very embarrassing for UP and their General Counsel.

I dunno... people call up our model railroad club all the time because they want to ship something on our fictional new york state railroad... I guess if I had a UP-based model railroad, someone might be dumb enuogh to confuse my HO scale tranportation empire with the 1:1 counterpart.

Glad UP is "keeping it real."

-otto-

WANF-11--->Chaser, thanks for your response to JDFX. I thought this guy
is not worth MY time to respond to those idiotic statements.
Also thanks to jwb1323 for clearifying some aspects.
As to my knowledge, the dispute between UP, Athern and Lionel is going on for quite a while. And there is no reason to overreact now.
Some people might not like UP and know so much better how to run a
railroad. I only hope they can run their own model railroad, if they have one.
But they seem quite excited to have a reason and forum to slam on UP. And they seem to enjoying the possibility.

On the other hand I don't see what UP could possibly gain. What is the
percentage painted in UP colors of manufactured model railroad items?
What does the total number look like? The money is not worth the hassel,
unless UP wants to keep track of who is allowed (licensed) to use their
logos. Therefore mrr is no exception to their trademark policies.

And why would UP have any rights on the molds? They represent prototypes made by EMD, GE, ALCO, Pullman, Budd etc. THEY could
claim the molds, if anyone.

In the end there shall be an agreement between UP, Athern and Lionel, limiting and/or permitting
the usage of trademarks in the toy industrie in general and for all other
rail roads.

N-railroader wrote:
snip

And why would UP have any rights on the molds? They represent prototypes made by EMD, GE, ALCO, Pullman, Budd etc. THEY could
claim the molds, if anyone.

snip

Okay, this is one of the points made in the licensing agreement text that I have a problem with. They don't have any rights to the molds. When the molds are original artwork (that is, they are not a casting of someone else's work), only the artist and/or his underwriters and/or his assigns, etc. have the rights to the molds. In other words, there is no way UP could lay any claim to molds unless the owner of the artwork sells or conveys the rights to UP. If the artwork is not original, but is instead a licensed or unlicensed copy of another's artwork, the rights are retained by the original artist. This might be the case with the printing artwork, which might include masks and printing pads, but certainly not the machinery behind it.

I've never heard of any of the builders copyrighting, trademarking, etc. their designs for the sheet metal bodywork of their locomotives, but it's possible they did. If they have waited until now to do so, it wouldn't matter, since the designs are in the public domain and anything created up to the time of copyright couldn't be retroactively violating that copyright, trademark, etc.