FMIC trademark

Discussion in 'The Small Company Luthiers' started by KKauffman, Oct 5, 2006.

  1. KKauffman

    KKauffman Member

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    Found this ad for the Fender Custom Shop "Blackie" Tribute and I noticed that the trademark copy in the lower right hand corner states..."Fender Stratocaster and the distinctive headstock and body designs are the trademarks of FMIC." Sounds like Fender was successful in obtaining a trademark on the body designs.

    http://www.coda-music.co.uk/Fender%20Cust%20Shop%20/Fender%20Blackie.pdf

    By the way, for those of you that have won the lottery the MSRP on the Blackie Tribute is $24,000.00. :crazy
     
  2. AJ Love

    AJ Love Senior Member

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    "Fender Stratocaster and the distinctive headstock and body designs are the trademarks of FMIC."

    FMIC has been using that statement in ads ever since they started the process of trying to trademark the body shapes. I don't believe they have been successful in their attempts yet.

    If they do manage to trademark the body shapes, folks like Lentz will be way ahead of the game...
     
  3. KKauffman

    KKauffman Member

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    AJ,

    I wasn't aware of that. In that case they should omit the reference to the body designs until they receive trademark approval.
     
  4. killerburst

    killerburst killerburstguitars.com Silver Supporting Member

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    Unless I've misunderstood what I've read, the new Trademark Act (2003) extends trademark registration to cover trade dress. Once the trade dress parameters have been established it is protected the same as any other trademark.
     
  5. clemduolian

    clemduolian Silver Supporting Member

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    FMIC, like many other companies, prints the statement on everything because they are "staking a claim" and putting the world on notice. Then, IF they ever are successful at registration and decide to pursue action against alleged infringers, they can get more damages IF they are successful at proving infringement (those are big ifs).

    In the ever changing world of intellectual property, a product's shape may be able to obtain trademark protection. If a shape has gained "secondary meaning" (e.g. the shape is associated with a specific source for the goods...think Coke bottle), it is probably protected (and arguably, a an inherently unique shape could be subject to trademark protection...). Still, Gibson just lost its suit against PRS over the single cutaway (read "Les Paul") shape.

    Could Fender win a suit? Possibly (one never knows what a judge or jury will do or how well the attorneys will present the evidence). Generally, the question is whether the public/consumer is confused about who made the product (trademark identifies the source of the goods). Certainly, most consumers on this forum could tell a Lentz from a Fender, don't you think?!?!


    Clem
     
  6. killerburst

    killerburst killerburstguitars.com Silver Supporting Member

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    A Lentz S "copy"? No. Not from any distance or with poor lighting or with a partially obstructed view of the headstock. The only thing immediately distinguishable is the logo on the headstock. And I believe anybody not familiar with Lentz' work would likely assume that it is a Fender. Lentz' work is probably a bad analogy becasue he used the headstock shape as well, which is already registered and has been defended in court as a trademark.

    Here's a better one: Would your next-door neighbor, preparing to buy a first guitar for his child, be able to tell a Fender Squier from a Hamer Slammer S-copy? If you covered the logos, he might not be able to tell you which is the Fender. I think that price point is a bigger concern for Fender than Lentz ever was. It certainly represents a much larger revenue stream for Fender.
     
  7. AJ Love

    AJ Love Senior Member

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    I was referring to the new Lentz guitars, the SSL, HSL, and DL-90
     
  8. fullerplast

    fullerplast Senior Member

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    Didn't know that, but not surprised. I don't know the terms of their licensing deals with folks like Warmoth or Allparts, but it seems as though it would be fairly easy for them to terminate when/if they expire.

    I suspect if that does happen, we'll simply end up with the equivalent of the minor USACG headstock bump, now added to T and S bodies..... :jo
     
  9. AJ Love

    AJ Love Senior Member

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    I've heard that it is not at all a slam-dunk that such an argument will hold up in court

    I'm no lawyer but I think that it will be much much more difficult to trademark the slant of a pickup

    Fortunately, "inspired" doesn't hold up in court at all when it comes to trademarks and copyrights.

    Despite what I said earlier, I think this is your best argument: the body shape of a Violin

    ....
     
  10. clemduolian

    clemduolian Silver Supporting Member

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    Probably not the best place to discuss arcane issues of intellectual property law :crazy, but....

    the fact that the shape has been in use, without claims of "trademark status," for decades, woud tend to favor the argument that it has become "generic" and should not be protected by trademark. Then there are the arguments reagrding "purely functional" vs. inherently unique, secondary meaning/consumer confusion.

    The bigger and scarier issue is that Congress and large business interests have made huge changes (for the worse) in copyright and trademark law recently, which have generally gone unnoticed by the public at large. These changes threaten creativity, technological advancement and small entrepreneurs (like talented luthiers, for one example). FMIC (and others) are tryng to take advantage of this dangerous trend (IMHO). Check out Lawrence Lessig's "The Future of Ideas" or creativecommons.com to learn more about such issues.

    Having been in court and administrative proceedings regarding trademarks and copyrights many times, it is sad to say that $$ often determines who "wins" and that is frequently NOT who is right--legally or morally.

    If you care about protecting creative freedom, get involved on these issues. The internet makes it easy to give comment/input to Congress (or local representatives) and to get information about how creative freedom is being eroded in the name of "protecting rights." This is happening right now.

    O.K., off the soap box and back to playing gutiar and mandolin. Sometimes it feels like :horse but we've got to fight the good fight.

    Clem
     
  11. Fuchsaudio

    Fuchsaudio Member

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    Same silliness as the Vox diamond pattern and the Les Paul/PRS-SC battle.

    All of a sudden a company decides they want exclusivity or protection on something they should have filed for 50 years ago.
     
  12. abergdahl

    abergdahl Member

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    Hmm let me think, Coke trademarked their bottle so that no one would by am other Cola mistaking it for a Coke.
    If you see Scott Henderson with a strat like guitar i could probably mistake it for a Fender a by mistake by a Fender when it's really a Suhr i should get. As things stand now FENDER is the on winning customers by having artists using boutique guitars LOOKING like Fender. The chance that i first time guitar buyer picks up a Suhr "by mistake" is zero.
    I can understand Fender and Gibson hunting cheap copies but i actually think that they BENIFIT from the Boutique look a likes. Suhr and other may actually HELP to sell Fender cheaper guitar, not to mention butique guitars having a Fender logo in the hands of a great player.
     
  13. JoeB63

    JoeB63 Supporting Member

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    By that logic, Fender should encourage any and all cloners -- to make exact copies, label and all.

    And maybe Apple should encourage other companies to make exact copies of the iPod and to put an Apple logo on them. Just think -- it make more people buy Apple iPods.

    Doesn't hold up.
     
  14. Vince

    Vince Member

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    Sounds like we've discussed a lot of the implications to this issue for buyers and builders. The thing that bothers me most about it all is the corporate ethical issue and what a "muscle" attempt to reclaim something that is long gone might say in the long run about a true American icon.

    Of course, all the arguments about the functionality of certain shapes of guitars are completely legitimate. That should be reason enough to stop a trademark registration. But there is a more important issue.

    As Suhr clearly illustrates with his story, Fender has known for years and years that they'd dropped the ball a long time ago for being able to legitimately register their body shapes as trademarks of their company.The law is clear as to what has to happen, and they just didn't do it. They could have claimed "acquired distinctiveness" a long time ago, hell, back in the seventies, but they didn't. So now fast forward a few years and you have Gibson filing over a shape on which they did have real trademark registration, and someone over at Fender finally says "holy S__t!! Mayber we better do something too!!!"

    Well, sorry guys, but there was no fence around the pasture where you kept your prize bull for over 50 years, and it's really nobody's fault but your own that it went out and sired so many other generations. But your mistake doesn't mean you are now suddenly entitled to now own, or worse slaughter, the entire lineage that was started by your negligence.

    So where's the ethical issue? I have a huge problem with any company who thinks they can exercise their muscle to intimidate the market and outspend, and thus "bully", all of the rest of the competition to get what they want, or think they deserve. Especially when they know that they have no legitimate claim to what they're trying to take. And especially since were talking about guitars.

    Fender is a great company. They make great products and there are some really great folks at the healm over there. I think they know their consumer pretty well, and I think they're wise enough to understand that the kind of people who put them in the position to afford a full-time staff of 12 lawyers are the same people might not think it's too cool to flex corporate muscle for selfish reason, or to unethically or illegally limit (or at the very least, control) the options that their market might have.

    At this point, I think they know that backing off and letting it go would be their best bet. After all, they've done nothing to protect "their" shapes for 50 years and it doesn't seem to have hurt them yet. They're just looking for the best way out so they can go back to focusing on better and more efficient ways of taking millions and millions of dollars of our money every year.
     
  15. mgrier1

    mgrier1 Silver Supporting Member

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    Vince,

    Thanks for the best, most concise, well reasoned post yet on this subject...:AOK

    It is often difficult for a company to see when the "inspired by" makers actually help the brand. Especially if they let the new innovations and changes influence their own products in return. Time for Fender to take a deep breath and relax... then focus on building better products at all levels of the line, not just the Masterbuilts, etc.

    Of course you already realize this with your own distinctive, unique, yet fender-inspired lineup.

    Best,

    Mike
     
  16. abergdahl

    abergdahl Member

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    There IS a difference, what did Slash's usage of LP clone do to Gibsons sales figures?
    And some companies DO licence the usage of there logo to more prestigious companies for marketing or cross sell opportunities.
     
  17. tonedaddy

    tonedaddy Member

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    You've completely lost me with this point.
    Yes, it's a true statement, but companies usually only license their brands to make products that they can't or don't want to make themselves.

    Take Harley-Davidson, for example.
    H-D doesn't make leather jackets with the H-D logo on them.
    Why?
    Because it's not effective for them to own/obtain the resources to make/market that product.
    So they license their logo to a company that makes leather jackets, and receive a licensing fee (and also benefit by the leather jackets building the H-D brand).

    But Harley-Davidson would never think of licensing their logo to a motorcycle manufacturer would they?
    Why would they do that when they have the resources to make/market the motorcycles themselves?


    So you're not suggesting that Fender would ever license their logo to a boutique clone guitar maker, are you?

    There's only 2 ways for Fender to go on the use of their logo with a boutique guitar maker:

    1. Authorized use: license their logo to a boutique clone maker.
    Again, why would they do that?
    Why wouldn't they just make/market the high-end guitar themselves, since they have all the resources to do so? Just like Apple has the resources to make/market iPods themselves.

    2. Unauthorized use: if they don't enforce/protect the authorized use of their logo, then they:
    a) are allowing sales to go to companies that otherwise could go to Fender
    b) risk losing their trademark protection due to lack of enforcement


    I'm not trying to start an argument.
    I'm just trying to understand how this point connects to your prior points (or JoeB63's points).


    Note:
    I personally don't object to anyone using the Fender logo on a guitar they build or own as it's none of my business.
    OTOH, I'm not surprised and don't object when Fender takes measures to stop the unauthorized use of its logo.

    And to be clear, my points have nothing to do with the use of Fender body shapes by anyone.
    ;)
     
  18. MikeP

    MikeP Member

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    [​IMG]
    Best analogy I have ever heard on the subject !
     
  19. killerburst

    killerburst killerburstguitars.com Silver Supporting Member

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    Part of the problem- perhaps a major part- is that trademark laws were changed dramatically in 2003, giving Fender an angle they hadn't had the 49 years prior.
     
  20. Curly

    Curly Member

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    sorry for reviving this ... the legal stuff is ZZZZZZZZZ for me

    However, I would just point out that neither the strat or tele headstock were "original" or "innovative" to begin with

    Leo said he copied "some Croatian instruments"

    Stauffer had a similar headstock in the 19th Century:



    [​IMG]


    the Strat headstock was "inspired" by Bigsby's guitar from 1946 (?):

    [​IMG]
     

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