Fender trying to copyright Strat and Tele body shapes

[Snags]

Originally posted by frank thomson
Hey Fezz, wasn't that patent for electronics, and basic design?

It's the patent for the bridge/pickup assembly, not the guitar itself.

[frank thomson]

Originally posted by andywa
Agreed. And one of the first rules of business is:

The customer is always right.

Gimme some of what you're smoking! :nelson

[Annie D.]

Imitation is the highest form of flattery and FREE ADVERTISING!!

It seems petty to me. Don't know what the dollar issue would amount to, but I suspect it's very high for Fender to pursue this giant can of worms. If it goes through we should see some beautiful, innovative, unique designs comin' outta the "fine guitar making world". All will be well. (will I get arrested for my strat-shaped neon light?)

[Williams]

You know what this all boils down to?? The overall conservative thinking of guitar players over the years. The only reason why we have not seen many progressive design concepts from guitar builders is because most folks WANT the Fender Strat or Tele designs. Face it, guitar builders only build what they feel are not only good products, but products that sell. The general guitar playing public is still stuck on tube amps and guitar designs that have been around for about 50 years.

On the other hand I find bass players to be a tad more progressive in their search for tone, feel, and playablity. Hence the reason why you find more progressive bass designs such as Modulus, Alembic, Smith, and others. Yeah, Leo created the concept of "bass guitar", but it has moved on beyond the standard Precision and Jazz bass designs because the CUSTOMERS started asking for something more.

Maybe if this lawsuit goes through we'll see something new because WE will be forced to start looking for something new and the builders will have to concede...

-Kevin

[Kap'n]

Originally posted by Williams
You know what this all boils down to?? The overall conservative thinking of guitar players over the years. The only reason why we have not seen many progressive design concepts from guitar builders is because most folks WANT the Fender Strat or Tele designs.

I'd disagree to a point. What's most amazing about Strats, Teles and Les Pauls is that they got it so right the first time. OK, the LP in it's most popular configuration took five years of development There have been plenty of different guitar designs over the years. Microfrets, Bunkers, Kleins, Steinbergers. Some of the ideas, like the microfrets micro nut, fixed problems nobody really cared about. Steinberger really pushed the envelope, but how many people really want or need a trans-trem. Microfrets also had wireless systems, but the technology wasn't up to it. Different to be better is good, like the refinements of classic style by Anderson, etc. Most stuff that passes for innovation these days consists of rearranging the body points on low end guitars.

Speaking of technology..

Originally posted by Williams
On the other hand I find bass players to be a tad more progressive in their search for tone, feel, and playablity. Hence the reason why you find more progressive bass designs such as Modulus, Alembic, Smith, and others.

I'd argue that bass has evolved more is because the technology has improved. High power, relatively light bass amplification came a lot later than adequate powered guitar amps. All of that was necessary to make a low-B five string. Leo made a five string bass....with a high C. He knew that his equipment couldn't handle anything lower.

[Cogs]

Originally posted by Williams
You know what this all boils down to?? The overall conservative thinking of guitar players over the years. The only reason why we have not seen many progressive design concepts from guitar builders is because most folks WANT the Fender Strat or Tele designs...Maybe if this lawsuit goes through we'll see something new because WE will be forced to start looking for something new and the builders will have to concede...

-Kevin

You're right; we need to see more innovative designs. Like this one, for instance:

:hee:hee

[Williams]

I never said that those original designs weren't better than newer ones. Apparently they are since players and builders continue to rely on them. But look at PRS and what they have done. That is one cat who took guitar building to the next level and it paid off for him.

Another thing is that the majority of guitar players out there grew up with the original Fender designs (i.e. baby boomers); therefore, they are more inclined to want something along the lines of what they grew up with...

I also agree that companies like Anderson are very innovative in their ability to expound on the originals and create something new and unique. The Cobra and Hollow Cobras are prime examples....

-Kevin

[Motojunkie]

I'm a Steinberger owner and player. *For me* Steinbergers fit like a glove. The tone, the feel, all aspects are perfect. I think that a lot of the reason that they were (are) shunned is because they aren't "traditional". I own, and play Fenders, a Gibson, and others, but my #1, and #2 are Steinbergers.

People need to get past the look, and try new things. They may find that although it doesn't sound like a Strat, Tele or Les Paul, it may sound perfect for you.

In graphite I trust......

[Kap'n]

I dunno, that Steinberger sort of has a stratocaster shape.... ;-)

Mine, OTOH, is the minimalist body type. I take it traveling.

[Motojunkie]

That's on my list a GL with transtrem.....

[Dave W]

Originally posted by andywa
Also, what qualifies as a 'near-exact' copy?

This could be construed as anything from identical body dimensions on every axis to any twin-horned body with one horn offset from the other. While extreme and not likely, Fender could claim PRS as infringing on their trademark.

Even if the boutique builders slightly modify their designs to be not strict replicas, Fender could still just sue them out of business.

Its not likely any of the high end builders have the deep pockets necessary to withstand a flood of lawsuits. Sometimes in court you don't have to be right to win.

That depends on exactly what Fender is claiming in their application. It won't be just an outline of a body shape, but particular configurations. If you look at what others have successfully trademarked, it's not the overall body shape, it's the configuration with pickguards and controls, the odd shape of a truss rod cover, the angle of a cutaway, etc.

Whatever it is, if the trademarks are approved, the competition will have to make enough changes so that anyone will be able to tell that the product is not made by Fender. And people who want an exact Fender but don't want Fender to make it will be SOL.

[the_best_of_fools]

Will that make all non Fender Strats and Teles collectibles ?! Ouch !

[brianf]

In the Strat book by "Dushoshier" (spelling) I'm sure it is mentioned that they did copyright the body shape.


I'm not a lawyer so have no idea as to whether about the do's and don'ts but agree that others should NOT be able to copy the body shapes of the Strat and Tele if they were copyrighted.

It's like prescription drugs. I will never buy generic. Just plain wrong.


brianf

[Dave W]

Originally posted by Scrutinizer
What about this argument…

<snip>

So...

If the shape is claimed to be distinctive today, it must have been even more distinctive in the ‘50’s. That’s the essence of a trademark – something distinctive about a product that identifies the source/manufacturer. So I think one can successfully argue that Fender had a common law trademark on the body shape way back in 1954.

Fender chose not to enforce their common law trademark for 50 years. That’s called abandonment, I believe.

I understand what you're trying to say, but that's just not how the law works. If this is challenged, it won't be on abandonment.

The law says that "acquired distinctiveness" means that the the primary significance of the product configuration in the minds of consumers is not the product but the producer. If the application is challenged, it will be to claim that the design doesn't fit that definition today. A challenge would never admit that the design fit the definition at one time.

[Dave W]

Originally posted by brianf
In the Strat book by "Dushoshier" (spelling) I'm sure it is mentioned that they did copyright the body shape.


I'm not a lawyer so have no idea as to whether about the do's and don'ts but agree that others should NOT be able to copy the body shapes of the Strat and Tele if they were copyrighted.




brianf

Once again....this is a Trademark issue only! It has nothing to do with copyright. Copyright applies to published works of literature and art. Not to products.

[andywa]

Originally posted by Dave W
That depends on exactly what Fender is claiming in their application. It won't be just an outline of a body shape, but particular configurations. If you look at what others have successfully trademarked, it's not the overall body shape, it's the configuration with pickguards and controls, the odd shape of a truss rod cover, the angle of a cutaway, etc.

Here are the links to the specific trademark applications:

Fender Strat

Fender Tele

If you take a look, the only thing being trademarked is a vague outline of the respective body shapes, nothing more.

If we are to assume that the dots in the outline represent specific edges, then, taking a page from patent law:

if any point of a potentially infringing shape does not infringe on the corresponding point in the trademark registration, then the shape does not infringe.

Yeah, I know this is a trademark, not a patent. I really do know the difference, having been through both processes multiple times.

Any builder of guitars has to know exactly what infringes and what doesn't. Otherwise, Fender could go after anybody who makes a double cut guitar with one offset horn.

As far as differentiating between a Fender and non-Fender...

If it doesn't say Fender on the headstock, its not a Fender.

Simple enough?

[andywa]

Originally posted by Dave W
Once again....this is a Trademark issue only! It has nothing to do with copyright. Copyright applies to published works of literature and art. Not to products.

This is all well and good. I think few people here are interested in the semantics. Regardless of the specific application, if it is approved, the end result is the same - major negative impact to many guitar makers not named Fender.

[pc]

andywa, no offense, but the difference between Copyright and Trademark isn't semantics, it's enormous.

The law in each area, codified and by case authority, is completely different.

You clearly don't like Dave W's answers. People can also think Miranda v. Arizona is a bunch of liberal crap, but right now, it's still the law. The difference is positing an argument that Miranda shouldn't be used anymore, as opposed to positing that Miranda isn't used anymore. The former is a valid opinion, the latter is a mistatement of the law.

I'm sure you do know a bit about the Trademark (and Copyright), as you say you've been through the processes multiple times, but then you close with:

If it doesn't say Fender on the headstock, its not a Fender.

Simple enough?

Which really suggests you don't understand Trademark law at all.

I'm not dogging you man, I'm just trying to help you understand Dave isn't necessarily disagreeing with your opinion, he's simply telling you what the current state of Trademark law is, and how it bears on Fender's claim, because I don't think you're getting that.

[Cogs]

[Dave W]

Originally posted by Jack w/his radar

I'm not dogging you man, I'm just trying to help you understand Dave isn't necessarily disagreeing with your opinion, he's simply telling you what the current state of Trademark law is, and how it bears on Fender's claim, because I don't think you're getting that.

Exactly. I'm not arguing the merits of Fender's filing (and I wouldn't even if I had seen it).

[andywa]

Originally posted by Jack w/his radar
I'm not dogging you man, I'm just trying to help you understand Dave isn't necessarily disagreeing with your opinion, he's simply telling you what the current state of Trademark law is, and how it bears on Fender's claim, because I don't think you're getting that.

Hey, its all good Jack. I think we are really debating 2 different things. I fully understand Dave W's points regarding trademark law and Fender's right to register and enforce their trademarks.

I also get the feeling from some retailers of the boutique names, that Fender really has a bone to pick with certain former master builders from the Fender Custom Shop that left and started their own companies.

If they are successful in their application, they are allowed to sue to enforce their rights, and could force these boutique builders out of business, even if they change their body designs, not by being right, but by having deep pockets, because as you know, in civil court as opposed to criminal court, the onus is on the defendant to prove they're not liable.

Then of course if it goes to a jury, if you were a custom builder of hand made guitars, would you want to stake your entire livelyhood on the decision of a bunch of people that have absolutely NO knowledge of guitars, that are shown your custom job against a strat and asked "Does this one kinda look like that one?"

I agree with both you and Dave W, to paraphrase: 'The Law Is The Law'. Its just in the application and interpretation that things get messy.

So lets have a look:

From www.uspto.gov

§2.41 Proof of distinctiveness under §2(f).
(a) When registration is sought of a mark which would be unregistrable by reason of §2(e) of the Act but which is said by applicant to have become distinctive in commerce of the goods or services set forth in the application, applicant may, in support of registrability, submit with the application, or in response to a request for evidence or to a refusal to register, affidavits, or declarations in accordance with §2.20, depositions, or other appropriate evidence showing duration, extent and nature of use in commerce and advertising expenditures in connection therewith (identifying types of media and attaching typical advertisements), and affidavits, or declarations in accordance with §2.20, letters or statements from the trade or public, or both, or other appropriate evidence tending to show that the mark distinguishes such goods.

(b) In appropriate cases, ownership of one or more prior registrations on the Principal Register or under the Act of 1905 of the same mark may be accepted as prima facie evidence of distinctiveness. Also, if the mark is said to have become distinctive of applicant’s goods by reason of substantially exclusive and continuous use in commerce thereof by applicant for the five years before the date on which the claim of distinctiveness is made, a showing by way of statements which are verified or which include declarations in accordance with §2.20, in the application may, in appropriate cases, be accepted as prima facie evidence of distinctiveness. In each of these situations, however, further evidence may be required.

[30 FR 13193, Oct. 16, 1965, as amended at 54 FR 37590, Sept. 11, 1989]

I would claim that under part (b), Fender fails the distinctiveness test by not being substantially exclusive over the past 5 years.

In any event, it will be interesting to watch.

[Sven]

Well, even if Fender's trademark sailed through the system on Monday and was granted, they still would have no right to sue people for what they did before that point in time and current stocks would still be saleable.

[BillG]

I don't see a problem here.

[brianf]

If Fender pulls this off it should not be a problem for small builders. They will not go out of business

Lets look a Lentz guitars. From what I read, this guy builds some of the very best guitars around. I have never heard of an owner not loving his Lentz. Lentz just happens to copy Strat and Tele shapes.

I'm sure a skilled guy like Mr. Lentz would just come up with his own shape (eg: the way Paul Reed Smith did) and go on building guitars. This would not put the small builders out of business.

People just happen to want Mr. Lentz (etc) to build Strat type and Tele type guitars.

I can bet Lentz has some of his own body shapes thought of already. Every guitar builder wishes to make his mark. I'm certain a Lentz (or another builer) could be the next PRS.

brianf

[MIKEH]

Form follows function. That's one reason that builders are using fifty year old body shapes. There's not a lot you can do to radically change the dimensions and bouts without making an instrument awkward to play. PRS isn't that much of a radical change from a Stratocaster. If you look at both bodies in silhoutte, the shape is basically the same. PRS already has legal troubles with Gibson over their single cut models. Remember that this is a tradmark issue, not a patent. It doesn't take into accout that the body is carved, bound, or capped with exotic wood, etc. The contention is, if you look at the shape of a body and associate it with a particular brand, that brand has a right to the trademark. The trademark application just shows the outline of the body shapes. Legally, Fender is perfectly within their rights to follow through with this application. Morally, I think it stinks to high heaven. If you think this isn't going to affect the custom builders, you are dead wrong.

[BLUELOU]

MAYBE MR MCARTNEY COULD HAVE CHANGED THE PRINCIPAL CONCEPT A LITTLE LIKE A DIFFERENT BODY SHAPE GIBSON DID MAKE DOUBLECUTAWAY SET NECKERS BF PRS DID PLUS I GUESS MR PRS WAS A GIBSON EMPLOYEE I DONT KNO THA SHIT ON HIM IM NOT INTO NAAGGIN CRAP

STRATS /TELES BEEN THE STAPLE OF INDUSTRY FOR DECADES
I GUESS WE ALL NEED POINTY TRAPEZOIDAL SHARKFINNED INLAYED PLASTIC 3 CUTAWAY STARSHAPED GUITARS LIKE DEAN DID LONG BACK
DEANS WERE SIMILAR TO LP'S BUT STRANGER IN BODY DESIGHNS BUT I LOVED THEM CADILLACS THEIR V HEADSTOCKSAND OD BODIES WERE THEIR GIVEAWAYS

ITS ALL ABOUT GREED AND$$$$$$
LIKE FENDER IS GONNA STOP ME FROM BUILDIN SOMETHIN I LIKE AND ASSEMBLE ALOT I NEVER USE THEIR LOGOS ON HEADSTOCKS
HECK I MADE STRAT STYLE GUITARS IN PAST WITH 3 ON 3 BECAUSE OF TUNIN STABILITY PLUS DIFFERENCEBIG DIFFERENCE

ITS FRIVILOUS LEGAL SHIT ONTOP OF LARGE ABSORBANT PANTYLINERS


ALL I SEE IS A BUNCH OF HEADACHES
FENDER IS RIGHT AND WRONG
I LOVE TRUE OLD STRATOCASTERS BUT THE FKIN 2 BOLTER TREMOLOS WERE FLOYD ROSE RIP OFFS ....FROM 70'S
SO MAYBE FLOYD WILL SUE FENDER ABC WHA EVA THE FK TH STUPID REAL OWNER COMPANY OF FENDER IS FENDER AINT LIKE THEY USED TO BE 30-40 YRS BACK THAS FOR SURE


BUT I HATE 2 POST TREMS NOT MY THING
NOTHIN WRONG WITH REAL VINTAGE 6 BOLTERS IMOP

THEY COPYIED FLOYD ROSE ORIGINAL TREMOLO ITS A PIECE OF EXPENSIVE TRASH FROM A VERY OLD FLOYD ROSE IDEA LONG AGO



IM NOT KNOCKIN
THE NEW FLOYDS THA HAVE ADJUSTABLE FINE TUNERS ON THEM
THOSE ARE SOME PLAYERS GODSEND GREAT IDEAS

THE OLD ORIG FLOYDS RESEMBLE THE NEWERR FENDER TREMS SOLID FIXED PIECE OF CRAPS I GOT ONE AS A ICON OF BAD IDEAS

OOOOOH YEA CNC MACHINERY
I GUESS GERMANY SINCE IT EVOLVED OVER THERE THEY COULD SUE FENDER FOR USIN THEIR CNC MACHINES SETUPS FOR WHA EVER MASS PRODUCIN PARTS ETC CMON

MAYBE JERRY SPRINGER COULD BRING THE NEW ACCLAIMED FENDER BUEROCRISTOCRATICAL GREEDY$$$$OWNERS TO HIS SHOW THAS WHERE THEIR MENTALITY BELONGS

ESP USES STRAT LP AND V DESTROYER BODIYSHAPES SET NECK THINK THEILL GET SUED
HOW BOUT THE FERNANDEZ GUITARS GREAT INSTRUMENTS
BEAUTIES IMOP WOW ALOT OF WORKERS WILL BE OUT OF WORK IF SHIT HITS THE FAN


TO ME
IF IT DONT SAY FENDER/GIBSON ON THE NECKPLATE OR HEADSTOCK ITS NOT A FENDER/NOR A GIBSON
PLAIN AS THAT
I NEED A ASPRIN

AND I LOVE FENDERS IM DISGRUNTLED THEY ARE TOO FINIKY
IMMITATION IS THE BEST FORM OF FLATTERY ITS ALSO A WAY OF SAYIN THIS IS GOOD STUFF

FENDER /GIBSON DID SET PRETTY MUCH THE STANDARDS IN THE ELECTRIC GUITAR INDUSTRY LIKE MARTIN DID WITH THEIR ACOUSTICS AND OLD WASHBURN ACOUSTICS BEEN AROUND FOR AGES EEEONS
NICE JOB CONGRATS

I THINK SOME CEO WITH A PENCIL UP HIS ASS IS ON THE RAG
PULL IT OUT AND LEARN TO GROW UP LAWSUITS THESE DAYS THIS WORLD IS SO FKIN MONEY GREEDY$$$ I HATE MONEY
GREED =EVIL
GOOD NIGHT
GODBLESS
SINCERELY
BLUELOU

[detuned]

Originally posted by andywa
detuned:

I am a customer of Fender. I own a few Fender guitars and amps. I might also be in the market for additional Fender stuff down the road.

I am also a customer of John Suhr. I may also be in the market for an additional custom built guitar from the likes of Suhr or Scott Lentz.

However, if Fender decides that I should be denied the opportunity to by a custom guitar from one of the boutique builders, then I absolutely will not be buying anything in the future from Fender.

Realistically, I know that I am not a typical Fender customer, nor is my potential future business at all important to them. As far as Fender is concerned, I am a nobody.

I just sometimes like to delude myself into thinking that there exists a corporate entity somewhere that places some value in the customers interests.

Yeah, I know, I been smokin too much crack again. I hate when that happens:

I don't see how you are personally hurt by this, other than your ability to purchase Fender knockoffs (albeit extremely high quality knockoffs) from other manufacturers.

I'm not suggesting that Fender cracking down on the boutique manufacturers is "the right thing to do" karmically, but they are well within their rights to try, & one could argue that they have a responsibility to the company and the brand to do so.

I still think it won't work...

[Old Tele man]

Quoted from US Patent and Trademark Office:

"A TRADEMARK is a word, symbol or design, or a combination of words, phrases, symbols or designs, that indentifies and distinguishes the source of the goods of one party from those of others."...in the marketplace. [bold emphasis mine].

"Trademarks, copyrights and patents all differ. A Copyright protects an original artistic or literary work; a patent protects an invention."


From Canada:

"Trademarks...represent not only actual wares and services, but the reputation of the producer."

"A PATENT...[is]... a contract between the government and an inventor, whereby the inventor receives legal protection for an invention while the government gets full disclosure of what the invention is and how it works."

"In Canada, patents are valid for a term of up to 20 years from the filing date of the patent application, provided appropriate maintenance fees are paid."

[Annie D.]

Gotta hand it to Leo (and Fender) the original concepts are/were pretty near perfect!

Rejoice! (she said with her LTD Strat draped across her lap)

[BLUELOU]

I TIP MY HAT TO YOU MADAM
YES I WHOLEHEARTEDLY AGREE 100% WITH YA THERE

I THINK THIS WORLD IS SUE CRAZY FOR$$$ AND GREED IMOP I WISH LIFE WAS SIMPLE

LENTZ SUHR MAKES HIGHER QUALITY FENDER STYLE GUITARS MAYBE FENDER SHOULD RE TOOL THEIR MACHINES AND TAKE SOME OLD FASHIONED HAND MADE POINTERS FROM THESE GREAT LUTHIERS

GODBLESS
SINCERELY
BLUELOU