Re: NEXT... Private Logo Problems

Larry Lee <jlawrencelee@...>
 

Could somebody with more trademark-law knowledge than I have possibly
comment on how UP can be getting away with this?
I'm not an attorney--thank you, Lord--but the short answer is that lawyers
and their clients can get away with whatever they can intimidate everybody
else into going along with. UP has deeper pockets for litigation, or the
threat of it, than you do, so you back down. No law, or legal
interpretation, is truly valid until it has been tested in court, but that
takes somebody willing to go through the time, trouble, and expense of a
lawsuit.

The argument advanced for all of this is that anyone who holds a trademark
or servicemark has an obligation to reasonably protect it from unauthorized
use. If he fails to do so, the feds can take it away and put it in the
public domain. This has happened in the past for terms like "Frigidaire,"
and "Videotape," but it is difficult to see how a model train could be
reasonably mistaken for a real transportation provider.

This is not the first time this has come up regarding models. Another road,
CSXT if memory serves me right, took this same approach several years ago
and wound up being embarrassed by the absurdity of it. General Motors tried
the same thing with Chevrolet. Model companies could buy a restricted
license to make Chevy models. GM was also embarrassed. But new lawyers and
a new company, hey, the possibilities are endless . . . Let's hope UP is
equally embarrassed--enough to fire a couple of jackass lawyers with far too
much retainer time on their hands.

Just to show how much this situation has changed, models used to be
considered free advertising by the railroad companies. ATSF went so far as
to essentially pay Lionel for the EMD F3 tooling some 50 years ago,
realizing it was superb name recognition. Of course, that was when
railroads provided retail transportation of freight AND passengers, there
were many competing carriers, and they cared what the public, i.e.,
customers, thought of them. Today, the mega-carriers just want the public
to go away and leave them alone. They are in the wholesale transportation
business now, and any contact with the public amounts to some kind of
liability. If you can't provide at least 10 cars per day--preferably
delivered to one of their yards--they would prefer that you never come
within 500 feet of their property. The only thing they want the public to
do is cough up money to pay for improvements to their physical plant. Well,
maybe one other thing--one of the recent legal initiatives has been to
transfer as much as possible of the security of their property to public
police forces. They do it by getting state laws passed that make it a
defined crime--as opposed to general trespassing statutes--to be on railroad
property, except at a public crossing. This lets them save a bunch on
railroad police. If you see anyone taking photos anywhere near the track,
just dial 9-1-1 and let the local cops waste their time and money.

Larry Lee
Auburn, AL

P.S. No, I haven't had any "encounters," so this is not sour grapes on my
part. I just think that ALL companies should operate for, not against, the
public. That's what their charters intended. I'll get off my soapbox now .
. .

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