It isn’t. Which is why Fender threatens to sue under copyright law, not trademark law. Their argument is that the strat design is a work of art (like a song, or a painting) to which they hold the copyright. Two important differences between copyright and a trademark are relevant here:
- You don’t have to register your work for copyright protection, it applies automatically to any creative work
- You don’t have to defend your copyright as aggressively as a trademark in order to hold on to it (though that doesn’t mean that can’t lose it)
It is for a judge to decide whether their claim is valid, i.e. whether the strat body shape was protected by copyright in the first place, and if so, whether it still is after decades of Fender doing nothing to protect it. The previous case doesn’t say much because the defendant didn’t bother to challenge Fender’s claim. Personally, I think Fender’s chances of winning this are pretty low, but you never know…
Anyway, I’ll just repost this article because it is an excellent summary of the situation:
