Big news: Fender loses attempt to trademark body shapes

[Dave W]

This is much more than just Fender bass specific, so I'm posting it here. It affects the whole MI industry. Fender's arguments were completely rejected. The body shapes are generic, they don't have any acquired distinctiveness, and Fender failed to police.

So now anyone can copy the body shapes without fear of reprisal.

http://ttabvue.uspto.gov/ttabvue/v?pno=91162497&pty=OPP&eno=13 (.pdf)

It's a precedential ruling, so it doesn't just apply to this case.

Interesting testimony from some industry leaders who opposed Fender.

[eb2]

This is interesting.  So they do "own" the headstock shape.  And it is unclear as to if the own the body shape IF it has standard Fender pups and routing.  Very fun to watch this play out, and the people involved is interesting too.

[OldManC]

Wow, Fender got spanked. I read through the first 22 pages or so but I've gotta get some sleep, so I'll get back to it tomorrow (yes, I'm actually interested in reading it all)!

[Chris P.]

Big news, but on the other hand: Walk in a shop and you'll find dozens of Fender copies...

[Dave W]

This is interesting.  So they do "own" the headstock shape.  And it is unclear as to if the own the body shape IF it has standard Fender pups and routing.  Very fun to watch this play out, and the people involved is interesting too.

They have had the headstock shape trademarked for years now.

With this ruling, they lost outright on the body shapes. Period. This has played out.

It's possible that Fender could appeal the TTAB ruling to the Court of Appeals for the Federal Circuit, but that court doesn't have to accept the appeal, and even if they did, there's not much of a chance that they would overrule a precedential decision (most TTAB decisions apply only to the specific case). Especially one in which Fender's claims were so thoroughly rejected.

[gearHed289]

The body shapes are generic, they don't have any acquired distinctiveness, and Fender failed to police.

This is exactly why John Hall at Rickenbacker is such a fanatic about going after anyone making or selling Ric copies.

[uwe]

So this means the TBird is finally off the hook? 

[TBird1958]

So this means the TBird is finally off the hook? 

 That's what I've been saying all along since Lull wanted to do 'Birds, Gibson and Fender never copyrighted those shapes they can't do anything about other manufacturers using them.......Thus the Lullbird. We've never had anything to worry about re: the BaCHbird either.

[uwe]

Lull(b)aby sounds nicer than Lullbird!l

[Dave W]

Not so fast there. Gibson has never registered a trademark on the Firebird/Thunderbird shapes, but that doesn't mean they couldn't try to claim common law trademarks. The Lull is not an exact copy, clearly different headstock, different construction etc. OTOH the BaCHbird could invite legal action. Gibson has apparently threatened a few LP and SG copiers into making slight changes.

Still, this decision is marked as a precedent. That's ammunition to anyone with the money (for legal fees) to stand up to any of the big boys.

[uwe]

My posting tried to allude to that historic correspondence between Fender and Gibson where Fender complained that the rev TB was ripping off their concepts. Now Gibson need not be worried anymore! Except maybe for the 4 in a row headstock. When my Fenderista partner here at the law firm read this, he immediately quipped: "Now Gibson can finally build themselves a bass that works - in Fender P shape. And made of mahogany of course!"

[copacetic]

Your partner sounds like a person of wit and wisdom. Reading between the lines however I think he is after your entire collection.

[uwe]

He'd steal my LP Sig first, that one he likes best!

[Pilgrim]

I read as many parts of this as I had time for.  It appears to me that Fender was undone by the nearly universal adoption of its body shapes, and by its failure to take action and try to limit those uses.  Of course, since they started in the 1950's and at that time the litigious outlook that would have been needed to get in front of this was normally lacking. 

Seems to me that a company which has been vigilant about limiting other uses of its body shapes (Ric) might not be as vulnerable as Fender was, because they have not allowed the body shape to become generic.  I can't think of manufacturers other than Univox and Greco in the 70's that copied the Ric style.

[uwe]

OMG! Gibson is quick on the ball, already they are rolling out promotion T-shirts for their new Precision Bass!!!