Another fender lawsuit

[BTL]

Thought exercise: Let’s assume Fender’s assertion of their rights under German law has merit (it does), and one possible outcome is that they litigate and win a court case or two in the EU (they might), how would you feel about “Licensed by Fender” bodies being marked and marketed as such?

At this point, I’m most curious about how this all might end, so I’m happy to engage in wild speculation.

 

[TheArchitect]

Thought exercise: Let’s assume Fender’s assertion of their rights under German law has merit (it does), and one possible outcome is that they litigate and win a court case or two in the EU (they might), how would you feel about “Licensed by Fender” bodies being marked and marketed as such?

At this point, I’m most curious about how this all might end, so I’m happy to engage in wild speculation.

As the Strat body shape for example was declared public domain by the courts long ago, I would not be happy about it. This claim of copyright is complete BS. All Fender has done is give me a reason to never buy from them again. Given the amount of used instruments in the wild alone, we would all be fine for a very long time if Fender stopped making guitars completely. I will happily play my Yamaha and do it with great joy

 

[Nedmundo]

Here’s some nerdy lawyer-speak on the topic.

Thanks for posting that. It's very interesting, and Fender's case involved new principles established by the European Court of Justice, so Fender may not have had a colorable case in the EU until recently.

 

[SharpCat]

I think the ship has sailed and the non-Fender builders have done nothing wrong—they are working under established laws and rules.

BUT—I think the Strat design (and P/J’s for that matter) are indeed special and innovative, and at the time they were designed they should have been protected.

Too late now.

 

[BTL]

I think the ship has sailed and the non-Fender builders have done nothing wrong—they are working under established laws and rules.

BUT—I think the Strat design (and P/J’s for that matter) are indeed special and innovative, and at the time they were designed they should have been protected.

Too late now.

Key point: The court disagrees.

 

[SharpCat]

Key point: The court disagrees.

With what specifically, and where?

In the US? I think the courts do agree that currently copying is legal. In Germany, it’s a corner case, so who knows.

Clearly Fender would like to change all that.

 

[SharpCat]

With what specifically, and where?

In the US? I think the courts do agree that currently copying is legal. In Germany, it’s a corner case, so who knows.

Clearly Fender would like to change all that.

Similarly, the designer of the bass body shape in @BTL ‘s avatar (I’m assuming it’s Brad) deserves protection of it from copying.

 

[stinkybass]

So. Ummmm. Design something of your own?

Right? Oh wait. Fender just improved on an existing design….sort of like what every manufacturer they’re after has done.

 

[stinkybass]

Well, I'd lean back, grab the popcorn and see how Fender vs. Thomann unfolds.

Just to give a frame of reference to those who do not know. Thomann is the largest musical instrument retailer in the world and their revenue outpaces the Fender revenue by no small margin.
There has to be all kinds of complicated leverage working behind the scenes.

Fender: "Stop building strats under your Harley Benton brand and stop selling any unlicensed strat shaped guitar. Recall all guitars sold and destroy your entire stock of illegal guitars"

(there is no reply for a while, because the people at Thomann laughed so hard they wet themselves and had to go home for a change of cloths)

Thomann: "No."

Fender: "We'll sue you and we'll win".

Thomann: "While we're at the phase where we're making threads: We'll cancel all our orders, drop every single FMIC item, introduce alternatives and use our immense reach to discredit FMIC products and/or push your direct competitors. How does that sound to you?"

Fender: "Take your lawyers and meet us in the back room. We'll figure something out"

This. Fender is playing with fire. If Thomann decides to drop them, they’ll be in serious trouble. Imagine if Yamaha decides to fight back. Talk about deep pockets. The Pacifica is their best selling guitar of all time!

 

[DigitalMan]

Fender is specifically claiming that the strat design is protected by copyright law because they know they don't stand a chance under trademark law. That's what makes this case interesting.

They failed to trademark body shapes in the US. Gibson failed to trademark some body shapes in the EU. Now they argue that the strat body is a work of art and therefore protected by copyright law. And a judge went along with it because the defendant didn't bother to show up in court and fight the case.

I doubt that their claim will hold up in court when the defendant actually bothers to show up, but we'll see.

That’s an interesting way to try and get a second bite at the apple. It does seem to have some merit but I agree with your skepticism.

 

[Gopherbassist]

As the Strat body shape for example was declared public domain by the courts long ago, I would not be happy about it. This claim of copyright is complete BS. All Fender has done is give me a reason to never buy from them again. Given the amount of used instruments in the wild alone, we would all be fine for a very long time if Fender stopped making guitars completely. I will happily play my Yamaha and do it with great joy

The Strat body was delcared public domain as a trademark, this is a copyright issue. Copyright is very similar around the world, especially in western countries, but not identical. I don't think this will hold up to a challenge.

I think this is all intentional by Fender as well. I think they hoped to throw up a smokescreen with the copyright thing. I think they expected people to be confused by the difference between trademark and copyright, and wanted people to see this as a vindication for their 2009 trademark loss.

I think many people have been confused by the IP law nuances, but that it isn't helping and won't help Fender. Any company that got cease and desist with access to a lawer with half a brain is going to be told this is BS. As for consumers, prettymuch everyone sees this as bullying and an attempt to push competitors out of the market.

Fender tried to drop a bomb on the on the market, but they fumbled it and dropped it on themselves.

 

[BTL]

@

Here’s some nerdy lawyer-speak on the topic.

@SharpCat The fact that the German court ruled in favor of Fender is not diminished by the fact that the defendant was a no-show. This was still a “title fight”.

With what specifically, and where?

In the US? I think the courts do agree that currently copying is legal. In Germany, it’s a corner case, so who knows.

Clearly Fender would like to change all that.

Yes, this is in the EU…for now.

Similarly, the designer of the bass body shape in @BTL ‘s avatar (I’m assuming it’s Brad) deserves protection of it from copying.

Yes, I’m Brad Lowe, and thank you for the kind words! I agree that I aspire to develop and succeed in the market with designs that are worth protecting. Only Time will tell. It’s been a fun ride.

 

[SoonerBill]

The fact that the German court ruled in favor of Fender is not diminished by the fact that the defendant was a no-show. This was still a “title fight”.

Explain why.
The way I see it Fender won based on the no-show. Not on merit.
Much like our local traffic court. If you contest a citation and the cop is a no/show your citation is dismissed. If another case is filed and the defendant shows will Fender win?

 

[TheArchitect]

This. Fender is playing with fire. If Thomann decides to drop them, they’ll be in serious trouble. Imagine if Yamaha decides to fight back. Talk about deep pockets. The Pacifica is their best selling guitar of all time!

Remember, its not just Fender that they would be dropping. Its all the brands under the Fender umbrella. Charvel/Jackson/Possibly EVH/Squier/Gretsch/Presonus etc.

 

[TheArchitect]

@

@SharpCat The fact that the German court ruled in favor of Fender is not diminished by the fact that the defendant was a no-show. This was still a “title fight”.

Yes, this is in the EU…for now.

Yes, I’m Brad Lowe, and thank you for the kind words! I agree that I aspire to develop and succeed in the market with designs that are worth protecting. Only Time will tell. It’s been a fun ride.

Hopefully you won't wait a few decades before you try to protect them like Fender did...

 

[TheArchitect]

That’s an interesting way to try and get a second bite at the apple. It does seem to have some merit but I agree with your skepticism.

Its like declaring the trunk lid on a mass produced car is art. Its not art. its product mfg for sale

 

[Polfuste]

And as they are running after dollars, more than developping the next standard for guitar/bass, they would never fight against Thomann.

 

[Nedmundo]

Explain why.
The way I see it Fender won based on the no-show. Not on merit.
Much like our local traffic court. If you contest a citation and the cop is a no/show your citation is dismissed. If another case is filed and the defendant shows will Fender win?

That's usually how a default judgment works in the U.S. When I practiced law, I obtained a few default judgments on behalf of my firm's clients. (Those judgments aren't always final, because defendants can attack default judgments for various reasons. Occasionally those attacks succeed.)

But the article about the German court's judgment in Fender's favor indicates the court analyzed the merits, including application of relatively newly-established aspects of EU copyright law. I'm no expert, but it appears that, under German procedure, the court conducts a hearing before awarding a default judgment, and the plaintiff needs to show it has a legitimate claim. That's why the court had to analyze the IP issues.

Article about the case:

Google Search

German law firm's description of German procedure:

Default Judgment in Germany: How to Proceed

Have you received a default judgment (Versäumnisurteil)? Act quickly! ✔ Time is crucial! German Litigators - English-speaking lawyers ➔ Read more

se-legal.de

 

[vvvmmm]

EDIT: I didn't see that article link (did you update your post or did I just miss it?); I'll read.

 

[BTL]

Explain why.
The way I see it Fender won based on the no-show. Not on merit.
Much like our local traffic court. If you contest a citation and the cop is a no/show your citation is dismissed. If another case is filed and the defendant shows will Fender win?

See the @Nedmundo comments below, and my link earlier in the thread.

My understanding is Fender’s first case was a “test case” and was adjudicated by the court on the merits of the argument.

Hopefully you won't wait a few decades before you try to protect them like Fender did...

Yes, the hierarchy as I understand it is Patent > Trademark > Copyright. So, if/when my non-patentable designs require protection, Trademark will the next most likely option to pursue in the US. However, if a door is opened in the US to pursue a Copyright claim, most time limits become irrelevant.

My educated guess is Fender’s first case is pursuing Copyright with the end-goal of reopening the Trademark case. Trademarks that are defended last in perpetuity.

That's usually how a default judgment works in the U.S. When I practiced law, I obtained a few default judgments on behalf of my firm's clients. (Those judgments aren't always final, because defendants can attack default judgments for various reasons. Occasionally those attacks succeed.)

But the article about the German court's judgment in Fender's favor indicates the court analyzed the merits, including application of relatively newly-established aspects of EU copyright law. I'm no expert, but it appears that, under German procedure, the court conducts a hearing before awarding a default judgment, and the plaintiff needs to show it has a legitimate claim. That's why the court had to analyze the IP issues.

Article about the case:

Google Search

German law firm's description of German procedure:

Default Judgment in Germany: How to Proceed

Have you received a default judgment (Versäumnisurteil)? Act quickly! ✔ Time is crucial! German Litigators - English-speaking lawyers ➔ Read more

se-legal.de

Yes, my understanding is this impact of the Fender “test case” may be much greater than just what we’re hearing about in the guitar market alone.