Check this link out and tell me I am corect in the understanding that this whole thing is BS based on this passage:
http://www.train-sim.com/dcforum/DCForumID3/25853.html "On Dec 8 the U.S. Supreme Court decided, 9-0, that plaintiffs in trademark disputes bear the entire obligation to show how the defendants product descriptions, based on fair use, confuse consumers about the originating company.
IOW, it strikes a massive blow on behalf of common sense: the burden of proof now falls upon the plaintiff to show (a) consumers are confused and easily mistake goods from company ABC to be from company DEF and (b) economic harm has occured as a result.
The case originated over descriptive text that included a trademarked phrase. The defendants have won.
What it means to folks like us here is if you write "Not affiliated with the Union Pacific Railroad or General Motors Corporations, or the transportation industry in any way" you've erected a fairly good defense against confusion when you go on to describe your product as "An artistic intrepretation represented by an electronic image of a locomotive produced by General Motors from 1959 to 1967 as used by the Union Pacific RR in 1965, for use only as an add-on enhancement to MSTS".
Because such a description of your product is not only completely accurate but has established the nature of the product and the marketplace in which the product is distributed, both of which are not really relevant to the mentioned corporations, their marks, or their products.
See:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-409 The ruling does not change any legal understanding about the validity of registered trademarks, the plaintiff's use of economic harm actually done to over-ride a fair use defense, or the ability of the plaintiff to show overwhelming evidence of priviledged prior use in the same markets to overturn a fair-use defense.
Dave Nelson
WP mainline, Oakland-Stockton: 100% complete;
SP mainline, Oakland-Stockton: 20% complete;
Aug 1950"
