Copyright Railroads

[ChandlerBranchRailfan]

Hello Ladies and Gentlemen of trainsim,

I would like to inquire if I need permission from the railroad to do a T Shirt like this?

https://www.amazon.com/Daylight-Sales-Heritage-Authentic-Railroad/dp/B08XXBF5Q7

Or is this like the "MTH Incident"

"On December 30, 2005, the Union Pacific Railroad sued MTH for using its logos, along with logos of various fallen flag railroads it had acquired, without a license. UP had previously sued other manufacturers, most notably Lionel and Athearn, for the same reason. At the time of the suit, UP had 104 licensees. The suit requested that MTH stop using the trademarks, pay damages, and send UP-branded inventory to the railroad for destruction.

On November 8, 2006 MTH Electric Trains and Union Pacific Railroad announced that they had amicably settled the trademark infringement case that U.P. filed against MTH in the Omaha, Nebraska federal court. The settlement benefits both parties as well the entire model railroad industry, allows Union Pacific to continue to protect its intellectual property, and authorizes MTH’s use of Union Pacific’s trademarks and paint designs on model train products and accessories. Union Pacific has also decided to change its trademark-licensing program so that model railroad manufacturers will no longer have to pay a royalty and will enjoy a perpetual license to use Union Pacific trademarks and paint designs on model railroad products."

Copied from Wikipedia

[eric]

For personal use, no. To sell... maybe?

UP has a somewhat generous provision for model railroaders (which payware falls under). But apparel doesn't count.

[muskokaandtahoe]

First, the matter isn't about copyright it is about trademarks. Very different law.

The purpose of trademarks is to give consumers something they can absolutely count on to know which company is responsible for some product or service. It can be an image (e.g., the Nike Swoosh) or a name or phrase (e.g., Chase Bank). Unlike copyright no creativity is required.

What is VERY unique about Trademark law is two points: The mark is only valid when used in a specified market, so "Union Pacific" is a trademark only in IIRC the transportation and warehousing markets and no other markets; but the big deal in the law is the protect it or lose it provision. Fail to protect your trademark will nullify it.

In practice companies ignore the first part and are fighting Pit Bulls in the second and since they have lawyers on contract it does not cost the company anything for those lawyers to sue anyone.

Real example: A photographer in British Columbia used his own photos of trains in the calendar he published. As a courtesy he send calendars to the CEO's of the railroads that were shown on the calendar pages. He even got a thank you note from the CEO of Union Pacific, something he kept. A few years later some one in the UP Legal department saw the calendar and sued him for Trademark violation. Problem was they had no legal standing under trademark law to do so and they knew that but tried to intimate him into submission. He refused and eventually it was clear to everyone that UP was going to lose. IIRC UP paid the guy $150k to settle the lawsuit they brought and he agreed to accept a license in perpetuity as well as their agreement not to sue any model railroad manufacturers. UP gave all those companies licenses as well even tho they had no legal basis for trying to enforce their transportation Trademark on toys.

The legal hotshots did not look very good after this.

I expect that the new legal staff at UP recommend they broaden their market to include toys and clothing. This is something you can check online.

My advise: Don't do it. ALL companies are highly motivated to sue the shit out of anyone who comes close to their trademarks, w/o regard to market and they use that power to intimidate anyone w/ limited financial means to sign licenses, with restrictions, that are truly unwarranted,

[ChandlerBranchRailfan]

What if I did this: Made a locomotive in the livery of UP WITHOUT UP LETTERING.

As attached, to anyone, it's just a Yellow Diesel Engine with an American Flag Shield on it.

IN NO WAY does it say Union Pacific.

Will I get sued for this? Because I am NOT using their logo, I am NOT trying to deceive the customer into thinking it's an official UP product,
It's just a generic train to the naked eye.

Just like what Dovetail Games did with BNSF Stuff back in the day.

[eric]

If you're selling it, put an American flag on the nose. The shield is actionable.

[ChandlerBranchRailfan]

So, what about these two? Are they okay to use on T Shirts and Coasters to sell?

[ChandlerBranchRailfan]

Alright, thanks for your help! I apologize for troubling you if I have by asking this!

[eric]

Absolutely nothing that could be concerning on those. You really can't trademark colors...

[ChandlerBranchRailfan]

Hi, I apologize for restarting this old thread, but as the OP (Original Poster) I would have the privilage of doing so provided that I would be adding something of value.

Will this be acceptable or will this get me in trouble.
I took Eric's advice and placed a square in the colors of the American Flag.

[yellowdog]

The only way to know for sure would be to ask the railroad's lawyers. Or just do it and see if you get a cease and desist letter. Otherwise it's anyone's best guess.

[eric]

I don't see any infringement, so perhaps just fly under the radar. The moment you ask a railroad branding lawyer for permission, the answer will be no regardless if it's justified or not.