It might be a US Court Ruling but....

[lateagain]

Check this out:

http://www.train-sim.com/dcforum/DCForumID3/25853.html

Check out this thread from TS.Com's forum.

As it says "a significant Victory for Common Sense"!

I know this doesn't open the door for UK modellers... but it's amazing how slavishly we seem to follow their lead in matters of litigation! I was delighted to see that many of the "Ambulance Chasers" are going bust as a result of recent UK court rulings. It's not that I don't believe that people deserve compensation where others are at fault. It's just that stupid and indefensible claims were swamping the legitimate cases.

As a consumer of, rather than a creator of, the models here at UKTS I hope that modellers in the UK will not feel intimidated by the greed of some Multinational out there.

It may not be UK law, but it sets a sound precedent in that it's based on Common Sense.

[kevarc]

I don't know if you read the full opinion. I did and after looking at it I to not thing that this will apply to skinning. In the opinion, it specifically mentioned that the typeface and the color of the print were very different. I would hazard a guess that this would not apply to the skins. Even putting "artistic impression by ...." in the readme would not fall within this opinion. To be an accurate model the colors would have to be correct. Also, UP and the IOC have would never cede that the skinner had prior use of the marks as Lasting did in this case.

IMNSHO, I do not think this will sway any of the mark owners from preventing unauthorized skins or going after those who would release them. They would claim, with what I believe good casue. that this case would not apply in this situation.

[saddletank]

I completely agree with you Kev, this still does not permit unauthorised use of registered trademarks, logos, etc. I don't see what relevance this US court decision has in the UK.

[nwallace]

It has absolutley no relevance here at all.

There are many computer games out there with fudged names for things to avoid having to pay licencing fees.

Some don't try very hard in renaming such as in London Racer
Nimi, GM (MG F), Jugular oh wait thats GTA

Though Chris Sawyer did come up with some rather good names in Transport Tycoon (Initial release had real names) But there are now Pseudo Real names in Locomotion.

And thats just names....

[petermakosch]

because Tony Blair is (inserts norty word) with George Bush?
Slighty OT, but relevent - even Coca Cola in the UK follow the US. They has Vanilla Coke a while before us, and now we've suddeny got it

[nwallace]

Just because the American Head of State and Prime Minister of Her Majestys Goverment, (Prime minister is just a tag he actually holds at least one of many other roles in a goverment but has been apointed as the head of that goverment. (Though the First Minister of the Scottish Executive is actually voted as such by the whoel parliment dunnoh about Wales))

Does not mean anything when it comes to law making.

Such a ruling is likey to be made in The High Court in Edinburgh and its english equivilent (yes not even a case for the house of lords)

The house of lords being the highest court for both english and scots law is a bit of a joke seeing as many lords have little knowledge of English Law and even less of Scots law (Hence why there are sepcific Law Lords)

Trademark law isn't very high on the agenda of the goverment right now, and with likley only 6 months left before a general election is likley to be called there is no time to even try and change it before the new goverment is voted on.

Its also something that any changes are likley to come from European Level discussions.

And as you may have noticed the EC/U like little better than making sure the Americans don't get their way.

[markw]

Just a general point, from what I remember of my legal module in my degree, which was a fair few years ago, the judiciary can have regard to court decisions made in other parts of the world particularly when dealing with matters that cross international boundaries. Whilst a decision in the US is not binding on UK judges at all (unlike previous UK judicial decisions), they can use other case law from other countries to help form their opinion.

In the US virtually all States (except Louisiana) and the National courts work to "Common Law" principles, as do most Commonwealth countries and the UK. Europe, on the other hand, works to Roman law principles. That makes it easier for the UK judiciary to consider US case law in deciding a case. It is less easy to accept a case tried under Roman principles into UK legal decisions as the whole point of Roman law is each case is tried on it's merits by pleadings which are assessed according to a written code, and weighted by legal experts, who are not judges - common law adopts the principle that a decision made by a previous Judge is binding on all subsequent cases unless substantial new evidence or circumstances pertain. (Different rules apply to Criminal law, this is referring to Civil law)

So, in summary, the fact this decision is a US case doesn't mean necessarily it is irrelevant to the UK, although it would require a case brought under UK law to establish precedent.

At least, that's how I remember it!

[thenudehamster]

I'm not alawyer, but as I see it from a layman's viewpoint, I think we're possibly confusing two slightly different animals: Trademark infringement by the unauthorised use of a Trademark, and 'similar' marks and uses.

Apple Computer and the Beatles' Apple Music are seriously considering getting into the sort of fight which this ruling would cover. They settled the argument years ago with an agreement that Apple Computer would stay out of the music production business, and Apple Music wouldn't make computers. However AM are now contending that with the iPod, iTunes and iStore, AC are getting into their territory and threatening to sue.
Under this ruling in a US Court, AM would have to prove loss or damage, rather than the historical version where AC would have to prove they weren't.

As far as I can see, Union Pacific can still sue you and injunct you for using their trademark in an unauthorised fashion if you make or reskin a model in UP livery without their permission.

Mark, I think I have seen somewhere that not all Court rulings are binding on subsequent actions; it's somewhere tied to the level of action (whether it's High Court or a single Justice in a County Court, fro instance) and the level of the action.
But US law still isn't binding on UK Courts in any fashion as you say, though there's the principle of 'the man on the Clapham Omnibus' which I believe behooves the Justices to consider all relevant material in coming to a reasonable decision which the man in the street would accept as just.

[markw]

Mark, I think I have seen somewhere that not all Court rulings are binding on subsequent actions; it's somewhere tied to the level of action (whether it's High Court or a single Justice in a County Court, fro instance) and the level of the action.
But US law still isn't binding on UK Courts in any fashion as you say, though there's the principle of 'the man on the Clapham Omnibus' which I believe behooves the Justices to consider all relevant material in coming to a reasonable decision which the man in the street would accept as just.

I think that's the same here, you can appeal to the higher court of Appeal or ultimately the law lords. They can overturn a decision (in other words a lower court cannot bind a higher court) if it was seen to be not in accordance with case law and that higher decision becomes binding on all lower courts. The main difference between US/UK law and Europe is our Judicial system where judges make the decision based on precedent, in Europe (and Louisiana, and Quebec) the decision is handed down after consideration of the appellant's case, by legal experts based on a written Code, which means no two cases end up with the same decision, a bit like an informal inquiry in the UK.

[lateagain]

I don't know if you read the full opinion. I did and after looking at it I to not thing that this will apply to skinning. In the opinion, it specifically mentioned that the typeface and the color of the print were very different. I would hazard a guess that this would not apply to the skins. Even putting "artistic impression by ...." in the readme would not fall within this opinion. To be an accurate model the colors would have to be correct. Also, UP and the IOC have would never cede that the skinner had prior use of the marks as Lasting did in this case.

IMNSHO, I do not think this will sway any of the mark owners from preventing unauthorized skins or going after those who would release them. They would claim, with what I believe good casue. that this case would not apply in this situation.

Kev,

The whole point of this case, and I suspect most "Trademark" litigation, is that a competitor in the same field is using some part of another parties corporate identity to allegedly confuse consumers into thinking that their product is the same and thus causing them some actual harm or loss through lost sales.

I've never understood (As "the man on the Clapham Omnibus" - famous bit of UK ruling that was meant to describe "the average man in the street") how portraying a corporate trademark on a model could possibly "harm" the corporation in question. It cannot possibly cause them any loss. One could go further and say that on the contrary it actually gave that corporation free advertising.

If UP or GNER were in the business of making and selling virtual models for M$T$ then I could see that they might suffer a loss as a result of a third party producing models for free distribution.

I would not advocate any member of the community breaking the law!

It is no big deal to approach a company to seek permission to use their brand and I assume by the huge amount of wonderful "real" model railstock available in various liveries that such permission is regularly given.

It just beggars belief that any corporation would persue legal proceedings against a virtual modeller.

1) It would cost them money.

2) They would probably stand to gain less than the cost of the case.

3) They would expose themselves to ridicule and totally avoidable bad publicity.

IMHO whilst their are friendly, helpful and sensible railway companies out there that are happy to support the sim and it's modellers why bother with the idiots?

Sorry if your favourite road is one of the later.

The issue of colour is IMHO a red herring. Modellers have spent considerable time trying to get the correct shades of various companies colours. How many have been sued? Of course they haven't! No company could prove that they've been harmed or suffered loss because a modeller has created a model in the same colour that they chose for their corporate identity. No one owns colour!

I don't want to start a flame here. There are serious issues. It's just that I can't help feel that one or two people in the community are trying to exaggerate issues here to make..... not sure what? To make themselves seem more important? To give virtual modelling an air of danger and excitement?

Face it. This community is self moderating. Rail Fans ACTUALLY LIKE railways and railroads. Why would they want to harm the things they love? Modellers spend hours of their time in a virtual "hommage" to the corporations that run the REAL (caps to emphasise the difference) thing. The "consumers" of these models, freeware and payware, would not download or buy them if they were anything but a good and faithful reproduction of that Companies property. Where's the harm? Where's the loss?

Geoff

P.S. I chose to respond to your post Kev as it highlights the link to tha actual ruling. Don't take anything I've said here as "aimed" at you.

P.P.S. Barry and MarkW's points are i'd have thougt also very relevant to this issue.

[petermakosch]

What happens if you're in the USA when you do it, but you're only there on holiday - can they still charge you?

[saddletank]

Peter, your location where you commit the 'offence' in these cases is mostly irrelevant. If you made a commercial MSTS add-on based on the Rough Riders Railroad (an fictional example of a real US railroad whose permission to use their logos you have not obtained) and sell it in the UK from your UK address, RRR could still go after you with their US legal team who would sue you under US law. You might appoint a UK solicitor and barrister possibly but RRR would seek to pursue the case in the US courts I think, necessitating you travelling to the US to respond to their case. Very expensive...

If you reskinned a Kuju GP38 in RRR livery and uploaded it here as freeware the RRR legal team might still go after you using US law but I doubt the case would go very far cost-wise. A simple 'cease and desist' order from them and you'd almost certainly take off the reskin upload from here and that would be that.

[thenudehamster]

Geoff,

While I take your points as valid opinions, I'd like to raise on or two counters. You mention that 'It just beggars belief that any corporation would persue legal proceedings against a virtual modeller.' While it's not a giant, and the action wasn't specifically against virtual modellers, ABF-Carolina Freightways, a large US road transport corporation withdrew permisson for reproduction of their logo and colour scheme a couple of years ago,and did threaten action against anyone breaking that ruling, commercially or otherwise. Ther NMRA and others were trying to change their minds, and I don't know how successful they were. However, it shows that it does happen.

Colour, too, is significant in trademark terms. A Company doesn't have to be specific about the exact shade - Ford's blue oval is a case in point; you can't reproduce it in, for example, a paler shade and claim it's different. It's the 'man in the street' thing again. What would he see as 'blue' is what counts.

[kevarc]

Actually, the only think that was settled was that Lasting needed more proof. The case was remanded back to the 9th Circuit Court.

It seems in the rush to be able to do things, people are reading to much into this decision. I say this because I DID read the whole thing, including the footnotes. I also talked to a lawyer I know who specialized in business work. I had talked to him before about this, just out of wanting to know what he had to say. He had read the decision and was waiting for my call. He told me that he does not thing that this decision would effect what skinners want - carte blanche to do what they want. Contrary to what you think Geoff, he said the color and typeface of the respective logos was very important to the case as was Lasting admitting that KP had prior use of the word. That these facts were brought up in the written opinion gives the importance that Justice Souter placed on them.

There is no way that skinners can claim prior use. AFAIK, the RR's have been around a bit longer than most of us as is the IOC.

While you think that they would hurt their public image or spend the money to get a cease and desist order, think again. These are very deep pocket companies. If I was in charge, I know I would. If the skinner doesn't want to play by the rules, at least as my lawyers see them, until overrulled by a court, I would drop the hammer on them.

[petermakosch]

Thanks for that Martin, something I have often wondered