New Fender body patents

[mudkicker]

Re: New Fender body patents

Winchesters assembly line was not specialized like fords. Wichester employees were broken down in to stock manufactoring, tooling and metal work and assembly. In the assembly stage one man put all of the pieces together into one rifle.
Ford went deeper into job specialization. Meaning if you installed wheels that is all you did for your 8 hour shift. You didn't build the entire car.

[Black Mariah]

Re: New Fender body patents

Everyone say it with me...

PATENTS ARE NOT TRADEMARKS.

Patents are designed to protect inventions, trademarks are to protect names (BASICALLY. It's too complicated to explain here, look it up your damn self [img]images/icons/grin.gif[/img] ). If Fender is looking to patent the body shapes, they're fucked. It's been too long, and too many people have them. One of the functions of a patent is to protect a manufacturer from competition for a short period of time. After that time period, it's up in the air.

Trademarks are different. They're designed so that a company can have a name, or some identifying symbol, and not have another company steal it. From what I was told (by Kevin Easton), the only trademarkable part of a guitar is the headstock. Why, I don't know. Anyway, with a trademark you must always take action to protect it or you will lose it. Trademarks don't expire the same way patents do. They live as long as you want to protect them.

What does all this mean? Well, body shapes are not patentable. Even if it was, it would be NOW because it's been 50+ years since Fender introduced it, and there have been too many competitors that have already used it. Trademark, even if a body shape is trademarkable, wouldn't work either because in the past 50+ years, Fender hasn't been too stringent on trying to defend their shape.

In short, they're fucked and need to go back to making 14 models of the same thing. [img]images/icons/grin.gif[/img]

[YetAnotherOne]

Re: New Fender body patents

Trademark law is kind of odd in that it operates simultaneously on three different levels: common law, state (w/registration), and federal (w/registration or w/o in some cases). There's little doubt FMIC had common law tm rights in the Strat & Tele shapes at some point. Even if they've never registered them at the state or federal levels the key question is whether they've done a sufficient job of policing the common law marks against infringers to allow the shapes to continue to function as trademarks (i.e., does the relevant subset of consumers still identify the Strat & Tele shapes with FMIC or has rampant infringement eliminated the shape's ability to identify their maker as FMIC)? If they've obtained registration of some sort their case simply become easier to make and their claim easier to enforce but it's not a prerequisite to successfully prosecuting infringers. Beyond that pro fusion is dead-on: if FMIC throws enough money at the problem, they'll probably prevail. Of course if they're awake they'll also file the first case against a large Japanese company and they'll file it in some whitebread town in the midwest. Anybody want to wager on how Bubba & Co. (no hate please, I grew up in just such a place) on the jury are going to vote when it's a US company and US jobs at stake versus an evil foreign infringer?

If their IP cousnel collectively has a couple of brain cells left to rub together they will have also filed copyright registrations on the shapes (if this wasn't done long ago). Unlike trademarks, copyrights don't directly lapse for failure to timely enforce them (although laches is always a problem in this sort of case).

Patents are out for many many reasons.

There're all sorts of interesting things that can be done early on but unfortunately this scenario is more typical: cleaning up the mess after years of uninformed-, underinformed-, mis-informed-, laisse fair-, or just plain lack of - action.

[YetAnotherOne]

Re: New Fender body patents

Originally posted by Black Mariah:
Well, body shapes are not patentable.

<font size="2" face="Verdana, Helvetica, sans-serif">As a blanket proposition, that statement is incorrect: look up "design patents" (which would generally apply to ornamental shapes of guitar bodies) but realize that utility patents would also be available for specific features/shapes if said features/shapes added in some way to the utility of the guitar (e.g., improved its functionality, comfort, playability, balance, tone, sustain, etc., etc., etc.). Of course FMIC's half-century old designs aren't eligible for patent protection at this point for a variety of reasons but new designs certainly would be.

[ February 19, 2004, 05:33 PM: Message edited by: YetAnotherOne ]

[RP]

Re: New Fender body patents

I would think a copyright would be problematic simply because of the time frame of the original "publication". If the original production of the stratocaster served as the "publication" date, then they'd only have received the original 28 years of copy protection unless renewed in the 28th year.

Not to mention that it's only been relatively recently that the copyright notice was not required to protect the copyright.

One could argue that any copyright protection the design might have enjoyed was gone very soon after the first stratocaster was sold.

[pro-fusion]

Re: New Fender body patents

Another copyright problem: guitar bodies are a 'functional' item where few, if any, design elements on the strat or tele bodies are purely decorative. You cannot copyright a 'functional' design (although that, like most legal stuff, is an oversimplification). An example: Apple tried to sue Microsoft over the design of Windows, but lost. The buttons, menus and such that both Windows and Mac use are functional elements that are not copyrightable, although certain purely aesthetic elements of the OS interface could be.

In any event, even if FMIC were to sue let's say, Samick, in some backwoods court, Samick would just hire some big U.S. law firm and appeal any decision. I'd say that FMIC is on very very shaky legal ground with this. Probably, it would be thrown out on summary judgment and never even get to a jury. But a smalltime luthier isn't going to have the money to fight FMIC's platoon of lawyers. I can see why they are going to fight this registration vigorously.

[YetAnotherOne]

Re: New Fender body patents

Copyright protection may not be available for each and every feature of a guitar body but to say that it does not attach at all is, I believe, short sighted. Copyright extends to protect such varied and seemingly functional things as buildings (not blueprints but the ornamental features of the physical structure), boat hulls and semiconductor mask works. Those are certainly special cases but they're clearly at least as functional as a guitar body. If you prefer more run-of-the-mill examples (and ones that would be registered in the same category as a guitar body) consider that items such as tables, lamps & chairs (as well as thousands of other physical objects of all types) are routinely protected by copyright. Of course the protection only extends to the purely ornamental features but I'd argue that any features added to a neck-through guitar when the wings are attached (or the equivalent area for a bolt-on or set-neck) are purely ornamental since those areas aren't strictly necessary to support the bridge, pickups, strap buttons or controls or to allow a spot to attach the neck.

The legal requirements to secure a design patent are far more stringent than those one must meet to register a copyright but design patents and copyrights on physical objects share one thing in common: they each protect the ornamental features (and only the ornamental features) of the item in question. The PTO routinely grants design patents on guitars. Here's an example of a recent design patent owned by Yamaha on an electric guitar (you'll need Alterna-TIFF or another TIFF plugin to view it). See all those crosshatched areas (there aren't any) - they're what Yamaha had to give up because they're purely functional. In other words, the USPTO examiner believed that EVERYTHING shown in that drawing was purely ornamental in nature.

So yeah, I think there'd be something left in the copyrights if they're still available. There's a similar argument to be made WRT trademarks since functional features cannot serve as trademarks but that one requires delving into the cases so I'll leave it for another time.

The problem FMIC might have WRT asserting old copyrights would be the changes in the (c) laws over the last half century. If they've previously registered them, they might have let them lapse before the renewal requirements were lifted (though the Mouse down in Orlando has seen to it that Congress has forgiven nearly all lapsed copyrights held by US entities). If they haven't registered them they're subject to the vagaries of the former laws related to common law copyrights and IIRC something happened in the late 70s that required registration w/in 25 years or the common law rights would fall into the public domain (seems like the critical date for that was 2004 or 2005 but I don't recall).

My guess is that the only way a tm action loses on summary judgement is if it could be shown that FMIC never asserted their rights. If they made attempts throughout the years to police their trademarks then it becomes a question for the jury as to whether those attempts were sufficient.

But then what do I know, I'm just some bonehead on an internet message board. [img]images/icons/grin.gif[/img]

[sully]

Re: New Fender body patents

i don't think this is anything new... from what kevin e told me once, jackson used to get cease and desist letters from fmic for strat bodies on a regular basis.

[xenophobe]

Re: New Fender body patents

Originally posted by mudkicker:
Winchesters assembly line was not specialized like fords. Wichester employees were broken down in to stock manufactoring, tooling and metal work and assembly. In the assembly stage one man put all of the pieces together into one rifle.
Ford went deeper into job specialization. Meaning if you installed wheels that is all you did for your 8 hour shift. You didn't build the entire car.

<font size="2" face="Verdana, Helvetica, sans-serif">Yes, but before this time, the same individual would draw the barrel blank, bore it out, mill, grind weld, and finish a product completely themselves.

Before this, all parts had to be hand-fitted. Oliver Winchester was one of the first to mass produce parts in batches, and have different people do various stages of manufacturing.

He turned from one person = one gun, raw materials to finished product, start to finish into various stages of manufacturing. The same people who made the parts had no part in applying the finish or assembling complete rifles.

Ford may have refined on the idea, but Oliver Winchester had already done it before, so had Ransom Olds for that matter. [img]images/icons/tongue.gif[/img]

[Toby]

Re: New Fender body patents

Afaik, years ago Fender and Gibson already tried to sue against imitators of their originals. Afaik, Fender and Gibson lost the case, because of the originals not have been trademarked then. Then Fender and Gibson trademarked their headstock styles. But these trademarks don't apply worldwide. Since Fender and Gibson tolerated other manufacturers to copy the original headstocks for years, the courts in Europe say that this headstock styles became public domain and cannot be trademarked in Europe anymore. In Europe, Stratheads still are legally, and US manufacturers still can legally export Stratheads to Europe. But the special situation with C/J and Stratheads is that FMIC now owns C/J.

[wodka]

Re: New Fender body patents

http://tarr.uspto.gov/servlet/tarr?r...Request+Status

This is a link to the trademark application.