Fender trademarking their body shapes? Bad news for everyone.

[reachjkh]

Fender seems to be trying to reign in the knock-off guitars from cheapo imports to boutique builders by trademarking their body shapes.

 

http://205.214.78.138/board/showthread.php?s=2c85fff610b80d5037e9f0b78748ce90&threadid=1546

 

The thread was started buy Gerard Melancon of Melancon guitars. I assume he's not kidding.

[Blue Strat]

Why shouldn't Fender be allowed to trademark their own body styles? It would be a good thing, IMO, because it'll force the cheaper guitar manufacturers to get innovative, like Danelectro and Harmony were.

[the stranger]

Seems a little late for this.

 

Couldn't it be argued those shapes have already become public domain?

That's kind of like Craftsman trying to trademark a drill.

[the stranger]

Not to mention, the strat and tele were based on the shape of a guitar prior to those models.

[NMcGuitar]

There would also be the question of how much variation does there need to be so a guitar is considered a "different" shape...

[Blue Strat]

Originally posted by NMcGuitar:

There would also be the question of how much variation does there need to be so a guitar is considered a "different" shape...

It could be argued that a Tele and a Les Paul have the same shape, so yes, there would need to be some stringent guidelines at work there. Also, you've got the Jackson Soloist, Ibanez guitars, Schecter, and Carvin bodies that are similar to a Strat's body shape.

 

It would make more sense to limit the trademark to bolt neck strat style guitars, with the Strat's most recognizable features, i.e., the tremolo system, three single coils, pickguard shape, 1 volume & 2 tone controls w/ 5-way switch, the chromed inset output jack, etc. All of those would have to be there to make it a copy, IMO.

[Jazz Guitar]

Originally posted by reachjkh:

Fender seems to be trying to reign in the knock-off guitars from cheapo imports to boutique builders by trademarking their body shapes.

 

http://205.214.78.138/board/showthread.php?s=2c85fff610b80d5037e9f0b78748ce90&threa did=1546

 

The thread was started buy Gerard Melancon of Melancon guitars. I assume he's not kidding.

How long do patents last? Medical patents last 7 years. Other patents last 21 years.

 

Back in the 70s Gibson sued the living crap out of Ibanez. For some reason, Fender knockoffs have been around for decades. I think the "cat is out of the bad" on this one. I think it would be unenforceable.

[revolead]

Originally posted by Mr Nice Jazz Guitar Guy:

 

Back in the 70s Gibson sued the living crap out of Ibanez. For some reason, Fender knockoffs have been around for decades. I think the "cat is out of the bad" on this one. I think it would be unenforceable.

I agree with you on this one. And if they do, what's to stop normal folks building their own Strat shape? Nothing. I suppose if it was getting marketed it wouldn't matter.

 

But theoretically couldn't one just change the dimensions a little bit in every direction and call it "original"?

[reachjkh]

50 years of guitarmakers have been using very similar body designs. Except for wild shapes just for fun, there are only a few common shapes used when designing guitars because they just are logical. I think of Jim Soloway's guitars as a strat-type guitar, however I would never mistake one of his as a Fender.

 

What if Kleenex tried to license a soft piece of paper for blowing your nose on?

 

Or if Martin tried to take ownership of the common acoustic guitar shape.

 

What if Chevy or Ford(whoever was the first to make one) tried to copyright the common look of the pickup truck...a cab and a bed sitting on four wheels with a motor under the hood?

 

Or Louisville Slugger and the baseball bat?

 

I have no problem with Fender getting tough about bootleg decals on Ebay and such. They obviously own their own name and should be able to protect it. I can even see them getting grumpy about their headstock shape(even though someone pointed out that they thought there was another guitar that Fender copied that headstock from)and suing everyone over it back in the '80s, but this thing with the body shapes is not right in my opinion, because it would encompass much more than just an actual strat copy.

 

Maybe I'm wrong.

[reachjkh]

Wow.

In the time it took me to type my latest response, I became redundant.

[coyote]

Fender's not trying to trademark the entire concept of guitar, just their original unique shapes. When they first came along, they were indeed unique - and the Tele is quite distinct from the LesPaul.

 

It's not analogous to Louisville trademarking the baseball bat, or Kleenex trademarking tissue paper.

 

Given the plethora of firms & individuals who have made a living on Fender's back, one can understand Fender's desire to take control of that to which they hold rights.

[Gruupi]

I guess if I were a lawyer, and that I was bored, I would try and trade mark anything I could get my hands on. You never know what the courts are going to do these days.

[Jazz Guitar]

Originally posted by coyote:

Fender's not trying to trademark the entire concept of guitar, just their original unique shapes.

Splain "original unique shapes", por favor.

 

"Broadcaster"? "Stratocaster"? Precision and Jazz Basses?

[Dave da Dude]

bluestrat,

Why shouldn't Fender be allowed to trademark their own body styles?

I agree.

 

It may be too late, it may be difficult to define, all the above "disclaimers", BUT why not? After all, the body styles are Fender's!

 

I'm a great advocate of the rights of the inventor, writer, designer, photographer to protect their "art" or "design". Why should someone else make money off of their expertise or design?

 

Dave

[Dennyf]

I might be misremembering something here, but didn't Gibson try to make body shapes the issue w/Ibanez in the mid-70's lawsuit? And for some reason, body shapes couldn't *be* trademarked, but for some reason the headstock shape could?

 

I know, it doesn't make much sense at first blush, but I swear I remember something about this. I guess it could be argued that the headstock shape could be shared across different models, and therefore an identifying mark regardless of body shape.

 

But on the other hand, how close does a body shape have to be to be a 'copy' and not just a variation on a theme? And if it has to be "exact" to be a copy, how hard is it to vary the cutaway depth by a couple millimeters, or increase or decrease the number of pickguard screws? And if it doesn't have to be exact, what's to prevent Fender from trying to prevent the manufacture of, say, any single-cutaway solid body guitar? (Remember, even some teles have set-in necks.)

 

I think professional hairsplitting could easily defeat any attempt to "trademark" a body shape.

[Jazz Guitar]

Originally posted by Dennyf:

I might be misremembering something here, but didn't Gibson try to make body shapes the issue w/Ibanez in the mid-70's lawsuit? And for some reason, body shapes couldn't *be* trademarked, but for some reason the headstock shape could?

Was that how it ended? I mean the stupid headstock was the deciding factor???????? Oh those lawyers.

[Dennyf]

Well, like I said, I'm not sure, but I do remember headstock shape being at least a part of the issue. Anyone else have a better recollection?

 

All I know for sure is it was right after that a lot of new ibanez models came out, and many had the "fleur de lis" headstock shape that some models still have. And my Ibanez PF300 is definitely post-lawsuit (1978), yet often mistaken even by fairly knowledgable guitar players for a Les Paul. The most obvious visual distinction? The fleur de lis headstock.

[Jazz Guitar]

Originally posted by Dennyf:

Well, like I said, I'm not sure, but I do remember headstock shape being at least a part of the issue. Anyone else have a better recollection?

 

All I know for sure is it was right after that a lot of new ibanez models came out, and many had the "fleur de lis" headstock shape that some models still have. And my Ibanez PF300 is definitely post-lawsuit (1978), yet often mistaken even by fairly knowledgable guitar players for a Les Paul. The most obvious visual distinction? The fleur de lis headstock.

Lots of people mistake my GB10 for a Les Paul, seriously.

[Mike Gug]

I wonder if Fender would have Guild and Squier stop making LP knock-offs? I'm sure other Fender properties are making other copies. Closed-back amps, pfffft. Come on! They didn't come up with that!, did they?

[Teahead]

Originally posted by reachjkh:

Wow.

In the time it took me to type my latest response, I became redundant.

Are you serious? Were you surfing when you should have been working? Or is it more complicated than that?

 

I'm sorry to hear this, hope things work out for you. Best wishes,

 

Tea.

[coyote]

Originally posted by Mr Nice Jazz Guitar Guy:

Splain "original unique shapes", por favor.

"Broadcaster"? "Stratocaster"? Precision and Jazz Basses?

Hmmm... I'll try.

 

Original:

Preceding all others in time; first.

Not derived from something else; fresh and unusual: an original play, not an adaptation.

Showing a marked departure from previous practice; new: a truly original approach. See Synonyms at new.

Productive of new things or new ideas; inventive: an original mind.

Being the source from which a copy, reproduction, or translation is made.

n.

A first form from which other forms are made or developed: Later models of the car retained many features of the original.

 

Unique:

Being the only one of its kind: the unique existing example of Donne's handwriting.

Without an equal or equivalent; unparalleled.

 

While Les Paul had created his own electric guitars, Fender's Broadcaster & Telecaster preceded the Gibson LP product line. They also had a different shape from the impending LPs; anyone who looks at an LP next to a Tele can see a difference in both headstock and overall body shape.

 

The Stratocaster was different from all those in its double-cutaway design with tilted bridge pickup. The P & J basses shared the basic Strat body & headstock shapes. But all those designs were unique to Fender.

 

Is this an adequate explanation?

[Blue Strat]

Originally posted by Teahead:

Originally posted by reachjkh:

Wow.

In the time it took me to type my latest response, I became redundant.

Are you serious? Were you surfing when you should have been working? Or is it more complicated than that?

 

I'm sorry to hear this, hope things work out for you. Best wishes,

 

Tea.

I think he just meant that he double posted, or at least that's how I interpreted it.

[Blue Strat]

Originally posted by Mike Gug:

I wonder if Fender would have Guild and Squier stop making LP knock-offs? I'm sure other Fender properties are making other copies. Closed-back amps, pfffft. Come on! They didn't come up with that!, did they?

The body shape of the Guild Bluesbird and those DeArmond M-75's are different enough to distinguish them from a Les Paul, or at least in Fender's mind they are. A lot of the Strat knock-offs have exactly the same body shape as the real deal.

 

Amplifiers are a different story. You can't copyright or pattent a circuit, or if you can it's extremely difficult. Marshall started off making knock-offs of Fender's 5F6-A Bassman, but with 4 12" speakers instead of the usual 4 10" speakers.

[Funk Jazz]

i've heard recently from some bluegrasser's that Gibson is still on the "sue everybody" tirade but have now focused on mandolin builders. apparently over the headstock scroll from the famous early F style Gibsons that has become a mando standard.

 

stoopid

[webe123]

Well as far as Gibson and fender go, it seems to be about 50 years TOO LATE to start lawsuits now!! Why didn't they do this years ago?? It is not like there haven't been knockoffs of their body designs since they were made! I don't really think this will get very far from a legal standpoint. Then, what about all of the "kits" like the strat body on the carvin kit?? Just seems a little bit stupid doing it now!

[reachjkh]

Originally posted by bluestrat:

Originally posted by Teahead:

Originally posted by reachjkh:

Wow.

In the time it took me to type my latest response, I became redundant.

Are you serious? Were you surfing when you should have been working? Or is it more complicated than that?

 

I'm sorry to hear this, hope things work out for you. Best wishes,

 

Tea.

I think he just meant that he double posted, or at least that's how I interpreted it.

I meant that 5 or 6 good posts came along saying what I was trying to say while I typed it. I hit enter and found that I was late to the party.

 

Actually, I have no problem with Fender owning their own designs. The problem that I do have, has been partially stated above... If they trademark the strat shape, then will I not be able to get a good quality strat-type guitar from Melancon(or whoever) even though Meloncon's strat is a modified strat shape. I really don't like Fender quality build, and would like to be able to go elsewhere for the quality I want.

 

I mean, even a Jazz bass is basically a strat shape. Jim Soloway's(as I stated earlier) is basically a strat shape, and so are a bunch of old EKO, Hagstrom, etc. even though no guitar player would possibly mistake ANY of them as an actual "strat".

 

The statement about the headstock is also true hopefully. I believe the original Fender fuss over headstocks was ALSO trying to limit body shapes, but the Judge ruled that the body shape had too much to do with function rather than style(total hear-say on my part).

 

The real concern here with Fender possibly succeeding on this current attempt is if Gibson can sue PRS over their single cutaway designed body(when it looks nothing like a Les Paul), can Fender go suing people just because they have a long upper horn, a short lower horn, and some single coils on a piece of wood that looks like a thing traditionally called an "electric guitar"? I mean... no one but musicians hardly notice the diff between one guitar and another because they ALL sorta look the same.

 

Everyone knows that the headstock indicates the builder, but for goodness sakes, there is a lot of commonality among ALL types of body styles. Who's gonna prove that they came up with the Jazz box for the very first time, or the dreadnaught shaped acoustic, or the first machined drum lug? This just looks like trouble for the musical instrument industry to me.

[adam b_dup1]

all i have to say is....it aint a real stratocaster if it doesn't have fender on it....im so sick of knock-off's.

[Blue Strat]

Originally posted by ThatDrumnGroove:

all i have to say is....it aint a real stratocaster if it doesn't have fender on it....im so sick of knock-off's.

That's kind of the way I feel about it. It ain't a Strat if it doesn't have 50's style Strat headstock or the '69 large headstock that Jimi made popular. I prefer the earlier style.

 

My Rogue ST-3 is made by Fender, but it's still a strat copy and not the real deal, IMO. It's close enough for government work though...

[Chad Thorne]

Originally posted by Mr Nice Jazz Guitar Guy:

Originally posted by Dennyf:

I might be misremembering something here, but didn't Gibson try to make body shapes the issue w/Ibanez in the mid-70's lawsuit? And for some reason, body shapes couldn't *be* trademarked, but for some reason the headstock shape could?

Was that how it ended? I mean the stupid headstock was the deciding factor???????? Oh those lawyers.

Disclosure: I'm a recovering attorney. I don't need the money and playing guitar is way more fun than practicing law, but I am a lawyer. Not to suggest that this makes me more of an authority, but just for what's behind my $00.02:

 

In the case of Gibson the archtop guitar shape is/was much more generic, companies were making archtops before and at the same time as Gibson. The unique identifying component would be the headstock shape and any logo on the headstock. To be fair, Ibanez and others were putting logos on their headstocks which, from a distance, looked remarkably like Gibson's. I'd sue, too.

 

In Fender's case, the Strat and Tele shapes were developed by Fender and really should be proprietary. Have they neglected to enforce their rights for 50 years? I don't think so, but it's so easy to run up a solid body shape on a bandsaw (I've done it) that to keep the floodgates closed on copies is a big task. I have heard stories of Fender reps seizing and cutting the headstocks off copies or guitars carrying counterfeit decals. (Frankly, they'd do that to my guitar over my dead body, but maybe it's just urban legend.)

 

Anyway, I think Fender is within its rights if it wants to prevent others from copying its body shapes, but I also think, "Good luck"...

[daddyelmis]

Some confusion may be introduced by the distinction between trademark and patent. From the US PTO:

 

* * *

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

 

The right conferred by the patent grant is, in the language of the statute and of the grant itself, the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

 

What Is a Trademark or Servicemark?

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.

 

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks".

 

What Is a Copyright?

Copyright is a form of protection provided to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

 

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

 

* * *

 

If the body shapes of the Strat and Tele are trademarks, then Fender already has a certain amount of common law rights in them -- federal registration strengthens those rights in certain respects. Getting the trademark is one thing, enforcing it is another. Trademark infringement litigation is a very fact-specific matter (which translates in to high litigation costs) -- Fender certainly has the $$ to undertake such a strategy, but I wonder what the payoff would be. I sincerely doubt Fender would be able, through trademark litigation, to prevent similar body styles to the Strat and Tele from continuing to be manufactured. Perhaps their concern are the clear, cheap-o knockoffs that are not subtle in their copying.

 

Interestingly, Harley Davidson tried (I believe unsuccessfully) to trademark the sound of a Harley engine.

 

Patents on those shapes (to the extent not already issued) would not seem to be available because of a legal doctrine called the "first sale rule" which denies patent protection to an item that has been "on sale" for more than a year.