Archived posting to the Leica Users Group, 2005/07/31
[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]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