UP Sues Athearn and Lionel over Trademark infringement

[rcbsd45]

UP has filed suit against Lionel and Athearn over the use of the UP shield, logo and colors. Details can be found in an article posted to the BLET website, at the following link:

http://www.ble.org/pr/news/headline.asp?id=10639

[Xplorer2000]

It was a major headline on Trains.com , too!! This is really pathetic, seeing as UP can't even seem to run its own railroad very well these days. Even more so seeing the prices for the Kato AC44CWs, and the UP model is now five bucks more than a comparable unit. Now, maybe thats just Kato....my few dealings with them show that to be in character for them....but still, although UP is well within their rights to protect their trademarks, suing manufacturers because they wouldn't kiss UP's butt and pay what amounts to legalized extortion..... it's the height of arrogance. Even CSX didn't push things that far when they tried this some years back. You'd think they have bigger problems to worry about, like , oh, MOVING TRAINS!!! Someone needs to get their priorities straight.

[WANF-11--->Chaser]

I've said this before and I'll repeat.

I don't like the policy UPRR and other railroads have toward the railroading hobby, HOWEVER, I completely understand and support their right to protect their corporate image against unauthorized use.

I am sure we have seen the vendors at shows, in our hobby mags, and on the net that sell railroad memorabilia such as mugs, hats, T-Shirts, posters, you name it. I doubt any of them have licensing rights.

It is not right legally or morally for individuals or companies to profit using a trademark (corporate image) without permission.

There's no issue of arrogance or "butt kissing". Athearn and Lionel broke the law. Simply because CSX or even UP chose not to persue the issue earlier does not mean there was not a violation.

I'd want my cut too or be able to say no way if my picture was on a product someone was selling, be it profitable or objectionable.

Sure RR products are usually quality and non offensive, but what if Trojan wants to make a UPRR condom or Tampax wants to produce a UPRR product? Now I think you can see the point.

You may not like it, I don't like it either, but it's fair and it's the law.

Lets not forget that Kato, Athearn, Lionel etc, could lower their profit margin by enough percent to offset the cost of licensing fees, oh wait, yeah that wouldnt make good business sense so the cost is passed on to us.

[Otto Vondrak]

In the interest of public realtions, the railroads usually let the issue go. A wise choice would be to go after poeple who intentionally mis-use or mis-represent Union Pacific... for instance, using the UP logo in a design for a beer-bottle label, or calling your product "Union Pacific Beer" or even just "Beer" with the UP logo represents some sort of endorsement or ok from UP. The production of model trains in UP's likeness doesn't strike me as either mis-use or mis-representation.

-otto-

[jwb1323]

I'll mention this to my wife, who is a corporate attorney who sometimes has copyright issues come across her desk. Several things interest me here. First, I doubt if either Athearn or Lionel are "deep pockets". They could be badly hurt by the attorney fees in the case (unless some power attorney was a model railroader and decided to volunteer his sevices to the companies). Second, the issue is whether UP has acted sufficiently to protect its copyright in the past, it seems to me. You can lose a trademark if you don't protect it. How long have Champ and Walthers made UP decals with UP not peeping in protest? 70 years???? This could be an issue.

I do note, though, that UP has been painting locos and cars in logos and reporting marks of its constituent companies. A few weeks ago I saw a brand new covered gon in the D&RGW "Main Line Through the Rockies" logo at West Colton.

[dti406]

I just received my Mainline Modeler yesterday and there was the third editorial regarding the UP Smash and Grab, that the rest of the Model Railroad press wants to ignore. The jist of this one is that with the UP's sorry performance that they may be regulated by the Federal Gov't along with the other 4 surviving majors which could preclude this licensing bullcrap.

Another interesting point is that the edict for this came from the CEO and not the legal department which most people assumed. Please remember that the UP is also saying all the old trademarks are theirs even though they have abandoned these in the past.

Rick

[JDFX]

I've been following this online for a while now, on a yahoogroup. UP is not only trying to protect its current shield, but are also trying to protect all images of all the railroads that make up UP. Including a Freshly Painted CGW Boxcar. (Go Figure)

Their claim is that in court, they can say that these logos are in current use, so that they will have an easier time at winning.

However, several applications for trademark protection have already been declined, though the CGW one was up in the air, last I heard.

I dunno about Athearn, but Lionel should point out that back in the day, UP PAID lionel to paint their name on Lionel products.

If UP was interested in protectiing their trademark, all they have to do is make a form, and have the companies sign it. It wouldn't cost anything.

Anyone with intelligence can see this is UP's attempt at making a quick buck without any work, and all honestly, Both CSX and NS have publicly said they are watching with interest to see where this goes.

If UP wins, then all the other big railroads will follow suit, and try to make a quick buck as well.

If UP Wanted to protect its trademark, it should've tried to do so long time ago, not in 2004, not after millions of models have already been made.

U.P. might win, but only because it is spending big money to do it.

Kudos to Athearn and Lionel for telling UP to go "piss U.P. a rope".

[rcbsd45]

Subject: We're a great big rollin' railroad


We're a great big rollin' railroad
One that everyone can see
'Cause we're Usually Parked on sidings
That's why we're called U.P.

We're a million tons of cargo
Just a rottin' in the sun
We're the Union Pacific
And our meltdown's just begun

From the plugged up yard in Roseville
To our mainline filled with cars
It's a big congested mess
Like a railroad version of SARS

We're a thousand wheels of freight train
All being held for power
We're the Union Pacific
Makin' half a mile an hour

Bound from Omaha to Portland
Our customers are in luck
'Cause we're setting out their cargos
To load it all on trucks

With Amtrak stuck in Oakland
And in Denver and L.A.
We're the Union Pacific
And you're not gonna move today

From the Valley up to Dunsmuir
We are runnin' out of crews
But we'll deliver your great cargo
'Cause we're usin' DPU's

We're much safer and efficient
All thanks to remote control
We're the Union Pacific
Our bean counters say it's so

With our copyrighted emblem
We're gonna make 'em bleed
And the beatings will continue
'Til our tired crews succeed

Our investors are all waiting
With the shippers on their knees
We're the Union Pacific
We'll deliver when we please...

[Komachi]

rcbsd45,

Rock out (gives "Ozzy" salute)! I was rolling on the floor laughing my @$$ off (ROFLMAO). Sweet poem.

As one poster on the old Railfan.net put it...

"Union Pacific, We Devour." (Guess this means the little plastic ones now too.)

[snowplough]

The article in question mentions that Lionel has a licensing agreement with other companies regarding the use of the Lionel logo, and even the colors blue and orange. Although I certainly disagree with what UP is doing, it's satisfying, in a way, to see Lionel getting its come-uppance for its current streak of greed. How Neil Young can sing a line like "Gotta look out for the greedy hand" and then allow Lionel's current price schedule is beyond me.

[Tom Curtin]

A couple of comments:

1. It's a long way from institution of a suit to adjudication. Not having any legal training perhaps I should avoid issuing legal opinions, but here's one anyway: How many years have model manufacturer been producing and selling UP equipment? As long as I have been alive. More years than I have been a modeler. Well over 50. There must be something here roughly comparable to the principle of "adverse possession" wherein they have been allowing (and likely encouraging) it for so long that hey can't now legally prevent it.

2. Athearn and Lionel aren't naive. Both have been around longer than I've been a modeler. Maybe, just maybe, they want this suit, to force this issue.

3. I've written this on the forum before: CSX, or perhaps Chessie System, issued the same dictum to model mfrs. About 22 years ago, and the media got hold of it. I very well remember the front page of the Wall Street Journal. After a period of looking extremely silly to the public, they figured out a way to back off and save face at the same time. The media will get hold of this too.

4. I regret being critical of others on this form, but I have to say the following because I'm irritated: please, please refrain from the righteous indignation diatribes, i.e., "It's the law!!!" I must ask, "if you're not pro-model railroader what the heck are doing on this forum?

[WANF-11--->Chaser]

4. I regret being critical of others on this form, but I have to say the following because I'm irritated: please, please refrain from the righteous indignation diatribes, i.e., "It's the law!!!" I must ask, "if you're not pro-model railroader what the heck are doing on this forum?

Gee that sounds like you're saying "your with us or your against us".

I'm not saying that at all Tom Curtin, You take my comments out of context if you had read and comprehended my earlier post, I dont like it either. Make no mistake, I am a railfan, but I have my common sense hat on as well.

I am tired of the infantile *itching and whining about this issue. So what, pay the extra 5 bucks a roadname or start your own freelance roadname. Buy your own paint, imaging software and decals and paint and decal your own locomotives if $5 bucks is going to kill you.

Sure UP is a billion dollar mega company and might not be likeable, but you have to look at the larger picture.

If you don't like the law then petition your elected officials to do away with trademark and copyright law. (you wont be able to) Then I can produce Tom Curtin brand products and not pay you a dime for using your name or picture.

I think many people opposed and frightened by this issue just might be those guys I've seen selling plexiglass railroad signs, mugs, hats, T-shirts, etc. All at a pretty nice profit.

If you dont like paying more for licensed products, write a letter to whoemever is charging more for a roadname and ask why? Also ask them if they'll absorb the cost? Odds are they wont because its all about money and profits.

I wonder if Microsoft wanted to produce a Lionel train game and didn't pay licensing fees if a lot of opinions would change?

Other than that relax, Athearn and Lionel aren't going anywhere and your favorite products will continue to be produced.

UP isn't saying they dont want any prodcuts produced, just a say on what products their corporate image appears on, and to be fairly compensated.

[rcbsd45]

I'm a casual model railroader(although I operate the big ones for a living).... I guess this makes me an "ameteur model pro railroader", then.... But since I am not a full time pro modeler, I guess the decision has been made that I am not welcome because I am not "up to snuff", by someone's standards. Geez! Sorry to have bothered you, and I'll submit my credentials when they aare built up enough and then it can be decided whether or not I can use the forums! So much for not finding any "elitism" in this aspect of the hobby. Guess I was mistaken!

[Xplorer2000]

Okay...first off , that UP poem/song had me running to ...well...you know....I was laughing so hard!!! I concur... that rocked!!!!
Secondly,the Utterly Pathetic is being childish, ressurecting "Fallen Flag" paintjobs, and trying to say that they're "currently still in use". Heck , by that example someone could sue Conn. DOT over their use of the old New Haven McGinnis scheme on everything, or a railroad museum for having a fallen flag paint scheme. UP is apparently having a hard time doing what its supposed to be doing, so they're apparently looking for an easy battle to win. Anyone want to bet that there's a vote of "No Confidence", or some such thing, about to be sprung on management at the next shareholders meeting??? Again, by UP's reckoning, there should be lawsuits flying at Reading and Northern, and Wheeling & Lake Erie as well, since both use paint schemes that UP can lay claim to(Reading & Northern merely changed two colors on their ex-UP SD-50s, W & LE's is a direct ripoff of the old DRGW, down to the speed lettering. )
UP's actions, although fully within the letter of the law, are sad , in a way. No one is defameing , or attacking the companys character, they're just making models, as has been done for years. These actions strike me as those of a frustrated management, unable to come to grips with its own inadequacies, and lashing out at any target of opportunity they can find. Sheer arrorgance, just like when they caused their system to meltdown after the SP merger, and the troubles they had in Chicago when they absorbed CNW, and screwed up the Commuter operations there. Utterly Pathetic indeed!!!

[WANF-11--->Chaser]

"No one is defameing , or attacking the companys character, they're just making models, as has been done for years. "

I dunno, a lot of those Tyco, AHM, and early Bachmann products were awful and could be borderline defaming...LOL