Catepillar makes George Elwood remove EMD manuals from site

[Mike Kieran]

A lawyer representing Caterpillar sent a letter to George Ellwood (Fallen Flag Railroads at http://www.rr-fallenflags.org) requeting that he remove photos of copies from locomotive manuals of EMD products http://www.rr-fallenflags.org/cat-ltr.gif.

Legally, Caterpillar can enforce a trademark restriction. What they don't realize is the free publicity they get by their products constantly being displayed in model form and the negative publicity they receive by such actions.Major corporations and organizations don't care about bad publicity as evidenced by Ford constantly recalling cars because they explode when they get rear ended (Pinto and Crown Victorias in Police Specs), Walmart stripping municipality coffers, and cities building brand new stadiums despite cutbacks accross the board. Ford is still one of the best selling cars worldwide, Walmart enjoys a constant stream of profits, and stadiums are still being celebrated.We can all email Cat

The bottom line, as long as they are at the top of the profit food chain, who cares what the little guy thinks? It's all about the Benjamins. Guys like George Elwood who operate their railfan sites at no profit and relying on donations to help support the site (notice the lack of advertisements on the website) do not have the resources to take on companies like Caterpillar in the legal arena. We can all mail their legal team, but the legal team also has delete options in their email. If we are going to email anyone, we should email Caterpillar's Public Relations Department, the CEO of Caterpillar, and emails of support to George Elwood in case he needs it for legal purposes later on as well as moral support. It's tough being picked on by bullies.

This brings me to my next point. What happens to models of EMD's products? Will there be licensing on all models of E&F Units, NWs, SWs, GPs, ans SDs? If model builders have to pay licensing fees due to their profiting from these models, will that drive the cost of a model without DC to prices that are higher than brass?

[MasonJar]

Why is the letter addressed to Mr Johnston?

If legitimate (note several typos and other errors including the salutation above), the letter appears to be part of a blanket campaign, since they do not specify what his specific infraction is ("reproduction, distribution AND/OR display"), although they apparently appended a list of materials.

I also find it odd that the lawyer takes time to explain she is a trademark lawyer, but doesn't specifically outline the relationship between Caterpillar and EMD (recent purchase from GM).

The US Registration number quoted in the letter is here:
<!-- m --><a class="postlink" href="http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:21frc9.5.63">http://tess2.uspto.gov/bin/showfield?f= ... 1frc9.5.63</a><!-- m -->

Note that the record has not been updated so the owner information does not necessarily reflect the information in the letter. Not something that I'd leave out-of-date if I was going after those who allegedly are violating my rights.

Here's an interesting page on copyright and trademarks: <!-- m --><a class="postlink" href="http://www.copyright.gov/help/faq/faq-general.html#patent">http://www.copyright.gov/help/faq/faq-g ... tml#patent</a><!-- m -->

Since George is not using the trademark EMD to represent something else, I am not sure that there is a specific trademark violation. EMD/Caterpillar might accuse him of distributing copyrighted works, but there does not appear to be a trademark violation.

I would believe that what George has done could fall under fair use of copyright material, although maybe not if he's posted the entire document. However, scaling back the material to a cover page or something like that should suffice to protect him.

George's own copyright position is explained here: <!-- m --><a class="postlink" href="http://rr-fallenflags.org/submit.html">http://rr-fallenflags.org/submit.html</a><!-- m -->. It's a little confusing, but he's covered the basics of recognizing the rights of the creator of the work (i.e. photographs in most cases).

I wish the list of materials they refer to in the letter was available. I wonder if George wrote back?

I agree that the "UP approach" is not the best way to encourage support and interest in one's products...


Andrew

[Mike Kieran]

I talked to George via email and he seemed upset about it. He said that Caterpillar's lawyer ordered him to remove the EMD locomotive manuals. He still has manuals from other manufacturers on the web site.

[tomustang]

Well if CAT is selling these manuals I can see why they are sending letters, nothing to get into a huff about. They did send a letter first, it's not like they slapped a suit on him at the beginning.

[Mike Kieran]

The manuals were for EMD's earlier product lines. The company used to send boxes of the manuals in order to train engineers on proper use of their equipment.

[torikoos]

Still, it's a sad situation, and we the railfans have a possibility to ask for clarification of the lawyer, cleary indicating our hobby interest, and no commercial intentions. People have been modeling/photographing/painting etc trains and had an interest in all things related since their invention, and RR fallen flags is just one of the products, nothing for CAT/EMD to be worried about, and nothing posted there, could not be used by competitors , or obtained via other ways if they wanted to, so also that , if at all a motivation, is of very little value. Just the big boys being bullies once again. Silly move, and it's got to stop, where's the common sense nowadays (some people will argue that they don't need common sense because there's a law for everything, but how far have we sunk down if that is what the reply is?)... frustrating...

Koos

[Russ Bellinis]

It is a shame that Cat isn't a railroad. The U.P. lawyer didn't realize what they started when they came down on model railroaders until they discovered at the next annual corporation meeting that there was a huge contingent of model railroaders who owned U.P. stock and they were asking why U.P. was so short of cash that they had to make their profits from the model railroad hobby? When an overwhelming majority of the stock holders who attend your annual are totally mad at the company for doing something petty to hammer them, the corporate officers were aparrently "squirming" a bit before the meeting was over. There probably aren't so many railfans or modelers owning Cat stock.

[Mr Fixit]

I am no lawyer and I do realise there are differences between the legal systems in the US and Australia, but I would like to contribute the following observations regarding this thread.

IF and I mean this is a BIG IF this 'letter' is genuine then the lawyer 'Crystal' and her assistant need their butts kicked for NOT proof reading the letter before sending it.

How unprofessional to have sent a letter that was obviously a 'Cut and Paste' job without proof-reading first.

Secondly, If she is really a trademark lawyer as claimed then she should be fully conversant of the problems Union Pacific encountered with their efforts as trademark bullying of the modelling manufacturers and wider modelling community. Then again 'she' didnt check her letter so expecting her to maintain 'industry knowledge' of relevant current cases is a bit much. She should have advised her client as to the possible bad publicity that may result from this letter.

Thirdly, the letter makes no mention of the chain of events relating to the purchase of EMD by CAT via their subsidiary Progress Rail from the Private Equity firm, who had purchased EMD from General Motors [GM].

Forthly, as someone else in this thread detailed, these manuals are not posted in their entirety on the website and they had been freely distributed to members of the railroading community at the time of publishing. They are therefore historical documents which have been in the 'public realm' for a considerable period of time and both factors I believe, mitigate against a claim of trademark infringement.

Fifth, the website is not a widely known or publicized website and caters to a small specialized audience within the railroad hobby community and is provided freely without a direct correlation between any documents and any financial donations to maintain the website.

All of the above points lead me to conclude that the legal letter is a poor attempted forgery and has been devised by someone intent on creating malicious mischief.

Mark

[Mr Fixit]

Just wondering what the lastest news on this thread is?

Has anyone heard anything?

Mark