Archived posting to the Leica Users Group, 2005/07/31

[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]

Subject: [Leica] photographing UP trains-watch out!
From: kargue at sympatico.ca (Kevin Argue)
Date: Sun Jul 31 19:41:45 2005

This article was sent to me from noted rail photographer Tom Gildersleve.
It was listed on the ALTAMONT PRESS RAILROAD NEWSLINE
Enjoy.

Nils Huxtable is my coauthor and partner on the narrow gauge book I wrote
about 12 tears ago. As noted in this newspaper article, he is being sued
by the
UP Railroad. I think you will find it to be an interesting read.

Taking on a rail giant over logo

Union Pacific is the largest railroad in North America, a US$12 billion
corporation that rivals the national railroads of either China or Russia in
freight tonnage. Mike Tyack is a British souvenir wholesaler who, as a
sideline, sells
roughly ?3,000 a year in railroad calendars and other rail memorabilia,
almost
inevitably at a loss.

So why did the legal might of Union Pacific come crashing down on Tyack,
costing him more in legal fees than he will ever earn on his hobby?

Therein lies a tale with relevance for any transport company that is happy
to
have fans, but wants to keep control of its logo.

Tyack and a lot of other small-time rail enthusiasts seem to have run afoul
of Union Pacific's recent decision to take aggressive action to protect its
distinctive emblem, a shield with overtones of the American flag, after more
than
a century of benign neglect.

The railroad decided at the same time to protect the former logos of all the
many railroads that were merged into the Union Pacific system over the
years:
Southern Pacific; Missouri Pacific; Chicago & Eastern Illinois; and others.
Letters began flowing to hobby shops, printers, model manufacturers and
others.
The message: Register any product modeled after Union Pacific and pay a fee.

Many went along with the railroad, particularly larger model manufacturers
who are used to such licensing agreements. However, many small hobby shops
and
distributors assumed the letter was a mistake or they simply ignored it.

They did not understand how aggressive Union Pacific could be. Increasingly
assertive letters arrived at many hobby shops and other locations,
eventually
followed by federal court summonses to a growing number of them.

Tyack had simply passed along Union Pacific's letters to the man who
produced
the calendar Tyack was using. Besides, Union Pacific's letters were crammed
with mistakes and misstatements, he said, including a wrong address that
somehow the British postal service deciphered.

His first hint of trouble came when Fox News, the U.S. cable network, called
on April 15 asking for a comment on "the lawsuit." He told the network he
had
no idea what they were talking about. However, two weeks later, a summons
server arrived.

While Tyack was puzzling over what to do, a U.S. court found him guilty by
default. He was forced to hire an attorney. Railroad officials told the
attorney

they would settle for their expenses, $2,500, a small amount to Union
Pacific
but a huge amount to Tyack. But Union Pacific agreed to his attorney's
suggestion that Tyack pay $500, which the railroad should give to charity.

"I just felt somewhat victimized," Tyack said. "This was a traumatic
period."

A spokesman for Union Pacific, Mark Davis, said he was sorry that Tyack felt
hurt, but the Union Pacific policy was "a step that had to be done" to
protect
its logo. Numerous other companies do the same, he said.

Davis said he could think of no in-stances in which the Union Pacific symbol
had been displayed with an improper shape or colors. But he said the company
wanted to be certain that it would not be misused in the future, and that
everyone who uses it has specific permission.

The Union Pacific program was started in 2002 following the arrival of a new
company attorney, Brenda Mainwaring, who had recently left the CIA. Davis
said
she was not available for an interview.

Other U.S. railroads have expressed puzzlement at Union Pacific's
take-no-prisoners enforcement program, including its main competitor, BNSF
Railway
Company, which has had a brand protection program for the past decade.

"We went about it very differently," said Richard Russack, BNSF vice
president for public affairs. "We went about it without making a public
scene."

Russack said BNSF did not actively seek out misuse of its logo but took
action if a problem was brought to its attention. Russack said BNSF
wanted only
to
be sure its logo was properly displayed, with proper colors and style. Only
in
limited cases when someone could be considered in competition with BNSF -
for
example producing similar souvenir coffee mugs - does BNSF ask the other
party to cease distribution.




BNSF said it did not feel it had any jurisdiction over quality calendar
photos if those photos were taken from nonrailroad property and did not
involve
dangerous trespassing.

In 10 years, BNSF has not had one complaint about its brand protection
program, he said, and has never found it necessary to go to court.

It now appears that the Union Pacific program is headed to court. Nils
Huxtable of Vancouver, British Columbia, who produced the calendar that got
Tyack
into trouble, received his court summons last week and has hired an
attorney.
Huxtable, one of the top railroad photographers in the world, declined to
comment on the advice of his attorney, Gregory Guillot of Dallas.

But Guillot, a veteran copyright attorney, called Union Pacific's action
"very questionable."

"We will put them to the test," Guillot said, adding that numerous cases had
established that a company that did not actively protect its copyright for
many years lost the right to it.

Precedents abound, including some involving famous companies, like Singer
Sewing Machine, Guillot said.

It is uncertain whether UP's campaign will hurt it among rail fans, who
until
now have been enamored of a railroad that appreciates its past so much that
it still runs historic steam locomotives on excursions. The question is
whether
they feel that enthusiasm has gone off the track. - Don Phillips, The
International Herald Tribune, courtesy Larry W. Grant