https://www.facebook.com/Train/
The first thing I thought when I saw this was the Lionel Trains logo. It seems to me like a blatant attempt to use part of the Lionel Trains logo to promote Train's "PLAY THAT SONG" 2017 tour. 
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No..... Not even close.
Well if I were Lionel, I would let it go as it can be subliminal indirect advertising.
Don't see a problem.
The forum legal folks need to weigh in.
You can't copyright colors or the word "Train". Don
The issue would be trademark (specifically, trade dress) infringement, not copyright. I don't think there's a straightforward answer.
The question would be whether, given the similarities in color, pattern, and typeface, consumers would likely be confused that there was some association or sponsorship between Lionel and the band. Lionel is the first thing that comes to my mind, but I suspect most Train fans have no idea what the Lionel trade dress looks like. The markets of the two entities are very different, but of course there is the association between "Lionel" and "Train".
Might be a good hypothetical for my intellectual property class next year!
scale rail posted:You can't copyright colors or the word "Train". Don
Colors are trademarkable, provided the applicant proves secondary meaning (an association between the color and the source of a the goods or services). I can't start a delivery service and paint my trucks UPS brown and yellow without running the risk of infringement.
You don't get rights to the colors in ALL markets, which is where the likelihood of confusion analysis comes in. Other companies could use brown and yellow, but if the business is related to delivery there is a possibility that consumers will think the business is associated with UPS.
Do we need to care?
Rusty
It will make a good billboard lol
Based on what you posted, I can't see how it is.
the color is similar but not the same.
font is different
blue not used, instead black
box around train different than the Lionel use
lastly very diferent markets, a toy vs the name of a band.
scale rail posted:You can't copyright colors or the word "Train". Don
But you can trademark them
From the TCA magazine eTrain...
“Lionel Trademarks Classic Orange and Blue Lionel is proud to announce that it joins the ranks of McDonald’s®, John Deere® and Crayola® after the United States Patent and Trademark Office granted official registration of the classic Lionel orange and blue colors.
"A 1995 U.S. Supreme Court decision provides that the trademark law protects colors that are strongly associated with a product or manufacturer. The verdict proves that as goods and services continue to integrate into the daily lives of all Americans, color marks assume added importance because they overcome the language or cultural barriers faced by more traditional word or device marks.
"As with all Lionel trademarks, Lionel L.L.C. intends to protect its unique color palette to prevent consumer confusion from misleading competitive products, advertising or collateral materials.”
It MIGHT be close to a trade dress infringement IF it was used to sell model trains.....otherwise....No.
AMCDave posted:It MIGHT be close to a trade dress infringement IF it was used to sell model trains.....otherwise....No.
Trademark infringement does not require that the goods or services be the same. Proximity of the goods or services is a factor in likelihood of confusion, but the scope of trademark law has expanded to confusion about sponsorship or affiliation.
This Marx box and train come much closer "infringement", if you factor in color and product.
Professor Chaos posted:AMCDave posted:It MIGHT be close to a trade dress infringement IF it was used to sell model trains.....otherwise....No.
Trademark infringement does not require that the goods or services be the same. Proximity of the goods or services is a factor in likelihood of confusion, but the scope of trademark law has expanded to confusion about sponsorship or affiliation.
My other job years ago was licensing in the NASCAR world during the huge boom 1980's - 1999. I unfortunately know more about copyright, trade dress and infringement than I ever cared to know. It's a very fluid world......and pursuing a case against Train would be very tough and proving you loss of model train sales to a music group would be tough. You may win....but damages would small and your cost would be much more than what you'd be awarded.....and thus not worth all the time and money. The law vs real world is not always cut and dry. My lawyer at the time would not take it as a case.
I'm certainly no expert on this topic, but since we talking about the band Train (and so the thread is somewhat music related), I recall the band Poco originally took on the name "Pogo" after the well known comic strip but, Walt Kelly sued so the band changed the g to a c and moved on. Later, Poco alum Richie Furay and pals Neil Young (now we are back to being train-related!) and Stephen Stills named their new band Buffalo Springfield after a steamroller. That company (Buffalo Springfield Roller Company) was a lot more generous, basically telling them "great, have fun with it." You never know.
If Lionel was smart use the group to market trains in the program.......!
Dominic Mazoch posted:If Lionel was smart use the group to market trains in the program.......!
Never heard of them so it would be rather ineffective for me.
Chas posted:https://www.facebook.com/Train/
The first thing I thought when I saw this was the Lionel Trains logo. It seems to me like a blatant attempt to use part of the Lionel Trains logo to promote Train's "PLAY THAT SONG" 2017 tour.
Im not as concerned with the perception of copyright infringement - as I am with the fact the O.A.R. SUCKS!!!
But - Even if you seriously entertain the "copyright infringement" notion - I'd say its a GOOD deal for LIONEL - and more likely to make a bunch of 20>40 somethings aware of LIONEL...I'd say Lionel should send them a letter that says "thank you!"
AMC Dave it right on the money I'm thinking. While it is an subliminally obvious attempt to trigger emotions based on the Lionel Trains boxes and color scheme, it would be hard to.... and I doubt Lionel would be interested in.... proving a rock band meant harm or was trying to deceive in any way the consumers. More importantly they are not trying to associate themselves in any way with the Lionel company. Now, MAYBE a small child would say "Oh my gosh I want to go to that daddy it's about my favorite thing in the world OUR TRAINS!"..... but their target audience is not going to be fooled. And that was never the intention.
Seeing that Orange and Black sign for Train wouldn't remotely make me think of Lionel unless a Lionel blue and orange box is placed next to it. Seeing a red stop sign doesn't make me think of Coca Cola anymore than the green lens on my ZW makes me think of 7 Up. I rarely think of MGM when I see a lion at the zoo for that matter.
Take a survey and see if you can find 1 person out of 100,000 on the street that would make the connection to Lionel without seeing the Lionel box next to it. But then according to experts on this forum there are over 1 million strong O gauge hobbyists in the country. So maybe there is a possible connection between the two pictures, but only in people over the age of 65.
Put a lower case f in a blue box, slightly offset to the right side of the box and, well, I think a lot of people could probably see a copyright infringement.
I just gave a quick listen to a song by Train and a song by O.A.R.
I'd guess that the vast majority of people interested in either group would not have any interest in railroads or railroading, real or toy, Lionel or other.
I don't think anyone who wasn't already into "O" gauge 3 rail trains would make a connection to Lionel.
Rock on!
If the Rudolph Wurlitzer Co. was still in the Jukebox business, they might have an issue with this ad, but Lionel....no.
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