Fender loses guitar copyright case

[TheWolf]

http://www.gibson.com/en-us/Lifestyle/News/fender-loses-331/Default.aspx

An attempt by Fender to trademark the body shapes of its Stratocaster, Telecaster and Precision models has been rejected. As reported by MusicRadar.com, in denying Fender's application, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office wrote:

"The applicant has not established acquired distinctiveness such that these two-dimensional outlines of guitar bodies, standing alone, serve to indicate source. The evidence overwhelmingly demonstrates that these configurations are so common in the industry that they cannot identify source."

Litigation involving the trademark issue has been going on for five years. In the dispute, Fender had alleged that Stuart Spector Designs, US Music Corporation, ESP Guitars, Sadowsky Guitars, Lakland Musical Instruments, Peavey Electronics, Warmoth Guitar Products, Schecter Guitar Research, Michael Tobias, as well as other companies, had infringed on its designs.

The Appeal Board concluded that the body shape of the Stratocaster, in particular, was common enough to be depicted as "a generic electric guitar in a dictionary."

http://www.musicradar.com/news/guitars/fender-loses-guitar-copyright-case-201886

http://ttabvue.uspto.gov/ttabvue/v?pno=91161403&pty=OPP&eno=246

 

[Dan B]

There was a big thread about this posted by Roger Sadowsky earlier.

As for the verdict, I am on the fence.

 

[TheWolf]

And I did search :< Twice.... Thanks for letting me know...I will go read that thread... The TB Search function fails me again....lol

 

[sean.1986]

It's a bit late for Fender. You can't wait until hundreds of companies copy you and then hope to sue them all. It'll never wash.

 

[BurningSkies]

It's not a copyright case.

It's a trademark case.

Unless Leo wrote a book and someone decided to publish it without permission.

 

[sean.1986]

Same thing principally, though, even if there's a different outcome. It's too late to stake a claim to something that's been in the public domain so long.

 

[GM60466]

What's the difference in a trademark case and the tweed case that my bass came in?

G

 

[Xavier Knox]

I'll pose this question, why could the body style not be trademarked and any further production of any model with that body style fall under the trademark law? Let's say for fun any guitar or bass made after January 2010. That way no one would have to pay back royalties and it would give the opportunity for manufacturers to change their designs and not infringe on the trademark law.

 

[UncleBalsamic]

There reason they didn't win is becuase it is silly to try and trademark something which has become such a standard 50 years after it's creation.

 

[3toes]

I'll pose this question, why could the body style not be trademarked and any further production of any model with that body style fall under the trademark law? Let's say for fun any guitar or bass made after January 2010. That way no one would have to pay back royalties and it would give the opportunity for manufacturers to change their designs and not infringe on the trademark law.

You need to read the court document then.

You cannot trademark it now because it is generic. It is impossible for those body shapes to provide "proof of origin" in terms of their manufacturer. Because those body shapes are so prevalent, you can't immediately look at a picture of a strat body-shape and say "That is without a doubt, 100% a Fender Stratocaster."

The headstock, however, is a different matter, and IS trademarked along with the logos and such. THAT is now how proof of origin is determined on those instruments.

Basically Fender neglected to protect their intellectual property.

Edit:

There reason they didn't win is becuase it is silly to try and trademark something which has become such a standard 50 years after it's creation.

It's not even that really... Even if it was 50 years old, if the market had NOT been flooded by identical versions, then it is still unique, non-generic, and can provide proof of origin of it's manufacturer.

 

[Xavier Knox]

You need to read the court document then.

You cannot trademark it now because it is generic. It is impossible for those body shapes to provide "proof of origin" in terms of their manufacturer. Because those body shapes are so prevalent, you can't immediately look at a picture of a strat body-shape and say "That is without a doubt, 100% a Fender Stratocaster."

The headstock, however, is a different matter, and IS trademarked along with the logos and such. THAT is now how proof of origin is determined on those instruments.

Basically Fender neglected to protect their intellectual property.

Where I don't exactly feel this is morally right you do make a good point. I personally feel you CAN identify a guitar or bass from a distance based on body design but if law says you can't then I guess you can't.

Cheers.

 

[3toes]

Where I don't exactly feel this is morally right you do make a good point. I personally feel you CAN identify a guitar or bass from a distance based on body design but if law says you can't then I guess you can't.

Cheers.

An actual physical guitar, maybe... But the court is talking about two-dimensional drawings of just the body-shape. No bridge, no pickups, no control-plate, nothing.

So if you were given basic penciled outlines of a G&L Legacy and a Fender Stratocaster...

 

[RobJ]

Assuming Fender did trademark their body shapes back when the instruments were designed for a moment, and I don't know they did or didn't; unless the company consistently took legal action against companies who were copying these body shapes their trademark will eventually become more or less meaningless and the designs will fall into the public domain, that is available for anyone to copy, which seems to be the courts opinion per its ruling. Once a company owns a trademark, it must enforce it I think is the bottom line and clearly Fender hasn't done that which is why every monkey's uncle makes Fender knock offs (and has for years). Trademark enforcement requirements on the part of the holder are also why Rickenbacker, as an example, goes after any company that copies their trademarked designs. Rickenbacker is smart... Fender, not so much imo.

 

[Captain_Arrrg]

Now I have a legitimate reason for my dislike of Fender! The NS body shape looks like a Precision? Sure, if you squint, only look at it from the top and you're greedy as....

 

[GregC]

There was a big thread about this posted by Roger Sadowsky earlier.

Of course, this being TB, it doesn't mean we won't have another long thread about it...

 

[JohNLA]

I am glad Fender lost.
They basicly made the designs public domain by not going after companies that copied them. That is how the laws work. If want ownership you have to go after those who are stealing from you but thay didn't for 50 years

Fender probably sold a lot more guitars becuase of this. All those designs became iconic because competitors were allowed to make copies and thus they are seen everywhere.
Now 50 years later they want to try and trademark.
I admire Fender for how far they have come and I hope to one day own a couple of real Fenders as I am sure most musicians would. Can any other maker claim that?

Fender already got paid they don't need the whole world in there wallet.

 

[Webtroll]

maybe they hired Gibson's legal dept?

 

[Darkstrike]

Warmoth Guitar Products

Thought they had an official licence?

 

[bobunit]

Now I have a legitimate reason for my dislike of Fender! The NS body shape looks like a Precision? Sure, if you squint, only look at it from the top and you're greedy as....

Perhaps it was the B.O.B. that was in question. In any case, the NS design looks pretty unique to me too.

 

[lpdeluxe]

I've read several places that Leo Fender was litigatious -- he went after Gibson for using offset waists on the Fire/Thunderbird series (I read somewhere that Gibson rebutted, using the F5 mandolin from the '20s as support of prior use), but it may be that he didn't protect some of his inventions as well as others. It's clear that he spent a lot of time developing the Precision bass; the original outline appeared in 1951, and was refined with the contours in '55 or thereabouts, and has remained the same since. But we can also note that Leo borrowed the shape for his G&L basses (I owned an L2000 with an almost identical shape to the P).

In fact, the Precision shape is iconic for the simple reason that Leo Fender did his homework: try sometime to design an electric solid body bass that accommodates the 34" scale, allows access to the upper frets, and hangs comfortably on a strap, and you'll find that Fender didn't miss anything. The Jazz wasn't so much an improvement as it was a variation. I've played both styles and I think the P is superior simply because it sits squarely on the A-frame stands I like, while the J wants to tilt.

There's no question that Fender was first, but the issue isn't about who originated it, but how the law works when intellectual property rights are not vigorously defended. I don't think anyone will mistake an Ibanez for a Fender, even if it may be shaped like a Fender. Ditto for Sadowsky and others. Roger Sadowsky is not evil just because he used what have proven to be public domain shapes for his basses -- in fact, we hear all the time around TB from owners who think their instruments are far superior to Fender. Sadowsky doesn't compete with Fender, and vice versa; until Fender starts paying the same attention to detail (and charging the same prices) no one will buy a Fender thinking they have bought a Sadowsky (and, I'm sure, no Sadowsky buyer will go around saying, "it's just as good as a Fender").

So too bad, FMIC, as owners of Fender you came along nearly 40 years too late to right all the potential wrongs...so get back to doing what you do, which is making well designed basses and guitars for reasonable prices.

What do I play? Oh, I own three Fender Precisions, of course!