You still going to love Fender?

[40Hz]

Incorrect. Fender has protected the trademarks associated with its headstock and logos over the years, and still maintains the trademarks. It failed to protect certain of its body shapes, and those have become generic, which is why you see plenty of Fender knock-offs with Fender-style bodies but different headstock designs.

Here is one example of a recent successful lawsuit by Fender enforcing the trademark on its headstock design: https://www.govinfo.gov/content/pkg...v-01075/pdf/USCOURTS-tnmd-3_13-cv-01075-2.pdf

They successfully sued and won because the defendant violated a consent order they previously signed with Fender

The parties came to an agreement and entered into a Confidential Settlement Agreement ("Agreement"). In the Agreement, Swade agreed to "completely cease using . . . any trademark, service mark, name, logo, design, source designation, or identifying characteristic of any kind that is a copy, reproduction, colorable imitation, or simulation of or confusingly similar to, or in any way similar to" Fender's Telecaster and Stratocaster headstock designs. (Docket No. 120 at 6) (emphasis added). This Agreement was incorporated into a Final Judgment and Permanent Injunction on Consent Order entered by this Court. (Docket No. 94). In the Permanent Injunction, the Court also expressly retained jurisdiction over the matter in order to enforce any violations of the Agreement.

Fender argues that the designs on the bottom—Swade's new, redesigned headstocks— violate section 2C of the Agreement: that Swade will not use characteristics "in any way similar to" Fender's Telecaster and Stratocaster headstocks.

Which doesn't sound like they actually proved their trademark violation complaint in court. More like they got the defendant to cave and had the court bless off on the agreement, which they also took the precaution of making confidential.

Which raises the interesting question as to why they'd want the agreement to remain confidential. Wouldn't it make far more sense to publicize it widely as a warning to discourage anyone else from thinking about doing (or continuing to do) the same? ( I can think of two reasons they'd want it kept quiet. Smarter people than me can probably think of several more.)

But this was also pretty clear case of the plaintiff agreeing to not do something which they later did. So I can't sympathize at all with them getting bit. Regardless of what you may think about an agreement, you made, you'd better stand by it or expect to face the consequences. Especially of a court gets involved.

 

[Mantis Tobaggan]

They are protecting their intellectual property.

 

[Mantis Tobaggan]

If the law suit is based on the headstock alone, then it is baseless.

I have said it for years here. And every time I say it, people here tell me I'm dumb or crazy.

The music gear market has WAY too many players in it right now. And between the new and used market, there is NO WAY there are enough customers to buy up all of the gear for sale. It's a house of cards right now. No way is stands much longer.

Big manufacturers will get increasingly more desperate. Small manufacturers will go under or be bought up. Medium sized companies will be the last man standing in my view....and Yamaha, simply because they make almost everything.

There is more for sale right now than there are customers to buy. Technology is making gear smaller and lighter. The population of guitar band musicians is aging out and there aren't NEARLY enough new musicians.

You are discounting bedroom guitar players in a booming economy. These cats have ten guitars and three amps sitting around their office at home.

 

[Bruiser Stone]

I am a lawyer. I don't practice in IP but as an aspiring musician, I'm interested in the evolution of IP trends.

Leo got there first.

The inspiration is a Tele. Fender, in it's current incarnation, is protecting the innovation and ingenuity for the check Leo deposited for his ideas.

Cleveland is 20 minutes up the road from my hometown. I get the small builder thing. Lucky Dog builds beautiful instruments. Get a license, and don't pay one of us attorneys to take your money and get ground into the dirt. $650/hour is obscene. This isn't F'ing Wall Street M&A law. Good grief.

I own a '78 Fender P-Bass. Yeah, I'm one of those birth-year people. It's a damn fine example from a much maligned era. If I ever sell it, it's because of stupidity or desperation. Mark my words if you see it here in the classifieds.

I knew what I was getting. I played it. It is iconically and inexorably entwined with the initial inspiration of all that is a P-Bass. The Fender moniker has everything to do with it. 2018 Fender didn't get a dime, but that is goodwill for ya.

When I think of innovation, I think Dingwall. Never played one, but they look cool. Not sure if Dingwall is the kernel of fanned fret ideas, but its name is what comes to mind when I reflect upon it. Leo's name comes to mind when I envision a Precision bass, or a Tele. The legacy he sold is the the stuff hired guns like me are paid to protect. Innovation is often distinct from inspiration.

Innovate, or get a license for a tweaking someone else's really great and fortuitously well-timed idea.

 

[Febs]

They successfully sued and won because the defendant violated a consent order they previously signed with Fender

True, but that is exactly the type of policing that protects the trademark from becoming generic. In fact, in the USPTO decision I subsequently linked to, the board explicitly noted that Fender had not policed its body designs in the same manner as its headstocks, and that was a significant factor in its ruling that the bodies had become generic.

 

[mikewalker]

You are discounting bedroom guitar players in a booming economy. These cats have ten guitars and three amps sitting around their office at home.

Yup, a close friend of mine is national procurement manager for a large American corporation. At last count he had six very nice guitars and three very nice amps sitting in his office, totaling around 50K retail. This is a guy who can just barely manage a barre chord, but he enjoys his gear!

 

[Mantis Tobaggan]

Yup, a close friend of mine is national procurement manager for a large American corporation. At last count he had six very nice guitars and three very nice amps sitting in his office, totaling around 50K retail. This is a guy who can just barely manage a barre chord, but he enjoys his gear!

Yeah man, I know a guy who has a Martin that he keeps by the front door to strum on while his wife gets ready for dinner. Somebody is buying those $10-$15K CEO guitars!

 

[Bruiser Stone]

Pretty much.

But why innovate when you can litigate? Innovation is hard. You can't just pick up a directory and call an innovator.

Law can be learned in school. Pay your tuition Take the requisite courses. Pass a state exam. Bingo! You are now licensed to practice law. And litigate.

Becoming an innovator isn't quite that straightforward.

It was literally that easy. But after brushing shoulders with a few hundred of my comrades, I understand the colloquial lament.

 

[pigpen1]

If the builder is infringing on Fender's patents, trademarks and/or copyrights, Fender has every right to and should go after the guy. Without enforcement, nobody's ideas are protected.

My brother is an intellectual property attorney. One of things he has recently seen is tribute bands and venues which have tribute bands, using artwork which is the same or very similar to artwork used by the original band. He said tribute bands and venues have been fined $75,000 per infringement. In one case, a casino made 6 posters which copied the original band's artwork but had the name of the tribute band on them. Since there were 6 posters made, the casino was fined $300,000 ($75,000 per poster).

As a member of BMI, I am glad that rights are being protected.

I agree on protect IP, but these old bands should promote tribute bands not try to stop them. It keeps interest alive in their music. The longterm effect of what they are doing hurts them

 

[Andy Daventry]

The decision makes it clear why Fender must pursue infringers if it wants to maintain its trademarks.

This is the material point. Fender is not chasing small builders because it enjoys putting them out of business, but because it needs to show it is defending its trademarks in order to keep them.

 

[rashrader]

Fender Shmender. They should worry more about their QC practices in house.

Actually, I do understand what they are doing.... Ugh.

 

[mbell75]

Fender is a corporation, doing what corporations do. No surprises here.

Yep, this guy in the video is an idiot. Patents exist for a very good reason.

 

[bobba66]

I would love them even if they sold nerve gas.

 

[IronSpatula]

Even Leo had to get inspiration from somewhere... When controversy arose about similarities between his headstocks and Bigsby's, he claimed he was influenced by 19th-century Stauffer instruments. Maybe current small builders can do the same.

The fact that Fender, like most builders, referenced prior work within the luthierie tradition is at least worth noting.

 

[40Hz]

That argument makes no sense because you are directing it against Fender with the innovate / litigate argument. What about the people copying Fender's IP? Shouldn't they innovate instead of copy?

Virtually every new innovation is built on innovations that came before it. If you look at a Fender PB it's easy to see there's nothing there (frets, tuning machines, magnetic transducers, electrical components, etc.) that didn't already exist - and some of which was at one time also patented. Leo combined existing technologies. And it's not 100% clearly established Leo was the first to "innovate" an electric guitar either, even if he was the first to make them successful in the marketplace.

The entire point of IP law (copyrights, patents) was to encourage innovation by giving an inventor or creator a fixed period of time to exploit their work as a virtual monopoly. But not to create a sinecure that would be protected for all eternity. Because that would stifle future innovation.

Idea was, you come up with something, and you get all the money on its sale for X number of years. After that, in exchange for the monopoly and protection period you got under public law, the general public was now free to appropriate and improve on it. In short, you can't just create something and milk it till the end of time under the protection of law. If you want to keep making money you have to keep creating something new. It's a brass ring. You get a free ride of sorts. But all rides (even free ones) have to come to an end eventually.

Trademarks are different. That's more a marketing protection in that it allows you to protect the images, slogans, logos, etc. that you use to identify and market your company or products in the normal course of business. There are ways to lose a trademark. But as long as you follow the rules, your trademark doesn't expire as long as it's being used in ongoing commerce. And in that respect it's different than a copyright or patent that protects actual innovations. And I don't think Fender is saying this guy is stealing any of their innovations. They're just saying they feel his headstock design is visually too close to their trademarked headstock, and they don't like that.

 

[MultiScaleMale]

Virtually every new innovation is built on innovations that came before it. If you look at a Fender PB it's easy to see there's nothing there (frets, tuning machines, magnetic transducers, electrical components, etc.) that didn't already exist - and some of which was at one time also patented. Leo combined existing technologies. And it's not 100% clearly established Leo was the first to "innovate" an electric guitar either, even if he was the first to make them successful in the marketplace.

The entire point of IP law (copyrights, patents) was to encourage innovation by giving an inventor or creator a fixed period of time to exploit their work as a virtual monopoly. But not to create a sinecure that would be protected for all eternity. Because that would stifle future innovation.

Idea was, you come up with something, and you get all the money on its sale for X number of years. After that, in exchange for the monopoly and protection period you got under public law, the general public was now free to appropriate and improve on it. In short, you can't just create something and milk it till the end of time under the protection of law. If you want to keep making money you have to keep creating something new. It's a brass ring. You get a free ride of sorts. But all rides (even free ones) have to come to an end eventually.

Trademarks are different. That's more a marketing protection in that it allows you to protect the images, slogans, logos, etc. that you use to identify and market your company or products in the normal course of business. There are ways to lose a trademark. But as long as you follow the rules, your trademark doesn't expire as long as it's being used in ongoing commerce. And in that respect it's different than a copyright or patent that protects actual innovations. And I don't think Fender is saying this guy is stealing any if their innovations. They're just saying they feel his headstock design is visually too close to their trademarked headstock, and they don't like that.

People *can* make P basses, a quick glance at any online store will verify that. What they can't do is infringe on trademarks. Fender comes out with new stuff all the time, but what people want are - Teles, Strats, P's and J's. That's determined by the market.

 

[Biffa]

I still love Fender, they probably don't want Corona to look like Detroit

 

[40Hz]

True, but that is exactly the type of policing that protects the trademark from becoming generic. In fact, in the USPTO decision I subsequently linked to, the board explicitly noted that Fender had not policed its body designs in the same manner as its headstocks, and that was a significant factor in its ruling that the bodies had become generic.

You can't come in twenty years after the fact and try to enforce a trademark violation if you turned a complete blind eye toward it. Or were lackadaisical in policing it.

But how much and how close a resemblance is something that's actionable is up for debate. Knockoffs are clearly a violation. But beyond that? It's gotten so ridiculous that some entities have successfully registered trademarks for colors. It'd be one thing if these were custom colors mixed just for them. But 3M claims "purple" as theirs. And one university has claimed a standard Pantone color for their trademark.

So where do you draw the line?

 

[Sparkl]

really? interesting. I didnt.

Fascinating.

 

[40Hz]

It was literally that easy. But after brushing shoulders with a few hundred of my comrades, I understand the colloquial lament.

'Easy' was probably not a good choice of word in that context. I do have respect for the legal profession as a whole despite my utter contempt for some of its practitioners. My point was that a law degree and license is something that is predictably obtainable given sufficient commitment and work. Achieving innovation on a regular basis is considerably more elusive.