Burlington Northern And Santa Fe Railway Says Artists Cannot Depict Their Trains

from the morons-in-a-hurry dept

Greg Beck of Public Citizen writes in to let us know about a case Public Citizen is involved in, concerning whether or not it’s trademark infringement to make a painting of a train from the Burlington Norther and Santa Fe (BNSF) Railway. The details of the case are yet another example of a company trying to stretch the meaning of trademarks well away from its intended purpose (to protect consumers against confusion) and, instead, using it to try to stifle speech they don’t like. In this case, a law firm that represents injured railroad workers commissioned a series of paintings of various trains, including BNSF trains. BNSF did not like this, and demanded that the paintings be taken down as they violate its trademark. Beck goes through all of the legal precedents and case law why there is no trademark infringement here at all, but I think it should serve as yet another case where the famed moron in a hurry trademark test should be used. Would a moron in a hurry see these paintings on a lawyer’s website and somehow be confused that the site was somehow associated with BNSF? It seems unlikely, though for the sake of BSNF, perhaps we’ll change the test this time around to “a moron trying to catch a train.”

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Comments on “Burlington Northern And Santa Fe Railway Says Artists Cannot Depict Their Trains”

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Mike F.M says:


…these drawings were being used for mallicious purposes or to give the impression that the railway was bad or hated customers then they may have stood a chance of getting these drawings taken down – on different charges, of course.

As it stands, it’s stupid to try and get them taken down because the amount of negative publicity that this will and is gaining will outweigh the positive effect they achieve (which I still can’t see).

Sanguine Dream says:

It's all about...

the numbers. These companies that cry foul like this are only in it for the money. They’re scared of the notion that someone may acutally make something good without them getting the lion’s share of the profit, credit, good press… Or is all this whinning over the fact the paintings were commissioned by a firm that handles cases involving injured railroad workers?

DougT (user link) says:

Sadly, there seems to be some precedent for this. The Flatiron Building in NY is trademark, and the owners of the trademark have successfully sued in the past for the use of their image:


And in the field of trains, the TGV seems to have a similar status:


So … for right or wrong … it seems like BNSF actually has grounds to stand on.


mark o. worrell (user link) says:

Re: how about the cost of tickets?

the real problem is how much is this eventually costing the passenger or shipper in increased expenses…trains will be gone from the American landscape in 25-50 years and this is exactly why…train companies used to take pride in artists utilizing their images

its like greyhound saying don’t use us in films…this foolish stance is just a lonely bugle coming from railroad’s selfcreated Little Big Horn

ehrichweiss says:

Doug makes a point...

and now I have to wonder if I could create a unique looking car, trademark it and then sue the town when they broadcast images of it on cable via their traffic-cams.

This is yet another example of why the USPTO and copyright offices need to be completely revamped immediately.

Of course it could be just as easy to say screw BNSF and start painting pics of maglev trains instead. They always say there’s no such thing as bad publicity, so ignore them instead. When people stop paying any attention to them they’ll either come around or be quickly forgotten.

That being said, I have some old toy trains for sale…I forget the name of them now…

ConceptJunkie (profile) says:


The holders of trademarks are just envious of how you can patent anything and strongarm anyone into doing what you want… they just want their fair share of being able to abuse the law for fun and profit.

Maybe they should patent the look of their trains and pursue that route. Why not? You can patent anything that even resembles an idea.

Ballenger says:

If it’s photography involving a logo on a privately owned train in a public setting, O. Winston Link’s work for example, in question, it’s not likely the greedy, simple-minded, short-sighted hired legal weasels trying to pull this off will get their way in the long term. If they are successful, we have a problem on a much larger scale to contend with. It’s ironic, that this clumsy effort will probably push “train art” off a dusty shelf of awareness in the mind of the public, and by drawing attention to the genre, make their efforts all the more difficult. Photographers should make every effort to get shots of the legal team doing this standing next to a train, so those dill-weeds can be properly memorialized for the next few hundred years in railroad, legal and parasitology history text.

Dosquatch says:


The question isn’t precedent, or wisdom, it’s whether “moron in a hurry” is trumped by “moron with a lawyer”… though I suppose that would depend on the moron on the bench.

As far as legal standing, I can’t imagine anyone would be fuzzy on this point – art is protected speech. In fact, some companies even (gasp) recognize and embrace the benefit to the brand name that art can bring.

imagine that.

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