Eastwood RD Bass

[Granny Gremlin]

I thought the original prototype was Entwistle's, as pictured in Bass Culture, pp152-53.  He declined it as his signature model but was too gracious to say why in the book.

Anyone have a picture one of those mahogany prototypes? This is the first I've heard of them.

The 6 banger reissues (2005-2012 IIRC) were Maho.  No Moog tho.

[Alanko]

According to Facebook, the RD guitar is already 87% funded whilst the bass sits at 30%. I saw some negative reception on Talkbass as well as here, which is probably hurting matters. I see they airbrushed out the Novoselik sig and the Gibson logo and whacked up the contrast a bit. They've not obscured the open-book headstock profile, so could still trip up there.

[BTL]

Defending a guitar body shape as a Trademark is getting more challenging every year, and I can't see Gibson doing much more than sending a C&D letter to Eastwood asking them to remove the Gibson logo on the photo (already done).

These days, the only defensible Trademark for MOST guitar manufacturers is the headstock shape (except for Fender) and the logo.

Fender has lost the Trademark on its headstock shapes because of their licensing agreements that ultimately rendered the shapes as generic as a beer/soda can with no label.

The RD body shape is such a low-seller for Gibson, it's not worth pursuing.

https://en.wikipedia.org/wiki/United_States_trademark_law#Trademark_compared_to_other_intellectual_property_laws

[Granny Gremlin]

Yes, but in addition to the shape and (until recently) Gibson logo, they are using the model name.  That changes things.

[Dave W]

Defending a guitar body shape as a Trademark is getting more challenging every year, and I can't see Gibson doing much more than sending a C&D letter to Eastwood asking them to remove the Gibson logo on the photo (already done).

These days, the only defensible Trademark for MOST guitar manufacturers is the headstock shape (except for Fender) and the logo.

Fender has lost the Trademark on its headstock shapes because of their licensing agreements that ultimately rendered the shapes as generic as a beer/soda can with no label.

The RD body shape is such a low-seller for Gibson, it's not worth pursuing.

https://en.wikipedia.org/wiki/United_States_trademark_law#Trademark_compared_to_other_intellectual_property_laws

Fender has definitely not lost the trademark on its headstock shape. Far from it. If you come to their attention, you'll get a C&D. It seldom comes to the point of a lawsuit, but if you defy the C&D, you'll be sued. A controversial "relic" builder who goes by the name Kelton Swade was sued into submission by Fender in 2013 for refusing to stop using Fender's headstock shape even though his more recent guitars had his own logo on them.

Licensing a trademark doesn't cause you to lose it. The Fender licensees are authorized to make replacement necks for Fender products, not parts for new product. It's not a gray area.

What Fender didn't do was try to trademark their body shapes back when it became possible under US law in the late 80s. Then a few years back they applied for trademarks on the Strat, Tele and Jazz shapes, but a consortium of about 20 builders opposed the applications. In 2009, the TTAB ruled against Fender.

Yes, but in addition to the shape and (until recently) Gibson logo, they are using the model name.  That changes things.

If Eastwood actually puts it into production using Gibson's model name, Gibson would probably care.

[BTL]

Yes, but in addition to the shape and (until recently) Gibson logo, they are using the model name.  That changes things.

I'm not sure it does..."RD" and "Artist" are pretty generic by themselves, not "fanciful" in any way, so the combination is not very distinctive, either.

Regardless it's not worth pursuing beyond a C&D letter.

Again, Trademark law sets the bar for what is defensible for ALL industry, not just guitar builders.

Beyond what the "purists" feel is distinctive from a historical perspective, the only way most consumers differentiate brands in the store or online is by checking the headstock and hangtag.

[BTL]

Fender has definitely not lost the trademark on its headstock shape. Far from it. If you come to their attention, you'll get a C&D. It seldom comes to the point of a lawsuit, but if you defy the C&D, you'll be sued. A controversial "relic" builder who goes by the name Kelton Swade was sued into submission by Fender in 2013 for refusing to stop using Fender's headstock shape even though his more recent guitars had his own logo on them. [...]

The only lawsuits I'm aware of, including Swade's, involve builders applying a Fender logo to a generic neck and calling it a "replica".

The Fender name and logo are absolutely protected as Trademarks.

If you want evidence that the headstock shapes are NOT defensible trademarks, check the Chicago Music Exchange website.

They have DOZENS of Nash guitars with Nash logos being sold side-by-side with new Fenders.

The horse is out of the barn...

Unfortunately for Fender, the licensing agreements they have with Warmoth, Allparts, Musikraft, Mighty Mite, etc. have led to the result that the headstock shape without a Fender logo is clear indication that it is NOT a Fender.

You can't have it both ways.

And yes, I have consulted a Trademark attorney on this issue.

[BTL]

[...] The Fender licensees are authorized to make replacement necks for Fender products, not parts for new product. [...]

I thought I would address this comment specifically.

The licensee agreements are governed by contract law, not (directly) by Trademark law, and these documents define the relationship between Fender and its subcontractors.

The contracts that state the shapes are "licensed by Fender under a quality control trademark license" do not govern what the purchaser of the neck does with it after it has been bought from the licensee.

Fender can certainly enforce the terms of these agreements with their vendors for as long as they remain valid, and none of the vendors build complete instruments.

However, the licensing agreements do not govern what the buyer does with the neck after it's been bought from the licensee.

From the CME site:

[Dave W]

The only lawsuits I'm aware of, including Swade's, involve builders applying a Fender logo to a generic neck and calling it a "replica".

The Fender name and logo are absolutely protected as Trademarks.

If you want evidence that the headstock shapes are NOT defensible trademarks, check the Chicago Music Exchange website.

They have DOZENS of Nash guitars with Nash logos being sold side-by-side with new Fenders.

The horse is out of the barn...

Unfortunately for Fender, the licensing agreements they have with Warmoth, Allparts, Musikraft, Mighty Mite, etc. have led to the result that the headstock shape without a Fender logo is clear indication that it is NOT a Fender.

You can't have it both ways.

And yes, I have consulted a Trademark attorney on this issue.

No, the licensing agreement has definitely not made the headstock shape generic. Fender still holds the trademark, and there has never been a successful legal action to cancel or invalidate it. There hasn't even been an attempt.

Nash has its own licensing agreement with Fender. They're authorized to use Fender's headstock shape.

Swade wasn't, and learned the hard way. The lawsuit specifically referred to his product using Fender trade dress without a license from Fender. That included headstock shape as well as logo.

If your trademark attorney told you otherwise, better get a new one.

I thought I would address this comment specifically.

The licensee agreements are governed by contract law, not (directly) by Trademark law, and these documents define the relationship between Fender and its subcontractors.

The contracts that state the shapes are "licensed by Fender under a quality control trademark license" do not govern what the purchaser of the neck does with it after it has been bought from the licensee.

Fender can certainly enforce the terms of these agreements with their vendors for as long as they remain valid, and none of the vendors build complete instruments.

However, the licensing agreements do not govern what the buyer does with the neck after it's been bought from the licensee.

From the CME site:

Again, Nash is authorized to use the shape.

You're correct that contract law controls the license, but you're dead wrong if you think Fender can't control what the buyer does if the buyer uses it to make a product for sale in interstate commerce. Why do you think Nash entered into license agreement with Fender? It wasn't out of the goodness of his heart. Why do you think Crook (among others) stopped using the Fender headstock shape?

The reason you don't hear about more lawsuits is that it rarely gets to the point of lawsuit. Small businessmen who get C&D letters usually don't have the funds to defend a lawsuit, and very few are stupid enough to ignore a threat. They get a license if it's offered or they cease and desist.

[BTL]

[...] Nash has its own licensing agreement with Fender. They're authorized to use Fender's headstock shape. [...] Why do you think Nash entered into license agreement with Fender? [...] The reason you don't hear about more lawsuits is that it rarely gets to the point of lawsuit. [...]

Dave,

You've made a couple of pretty inflammatory remarks, and I'm sure you are confident in your belief.

That said, I'm not an attorney, and I don't want to overstate what I know with certainty vs. what I believe based on the facts in the public domain.

In general, people imagine that the guitar business is somehow special and unique and has IP rights that are different than those that are applied to other industries.

In most of these discussions, people confuse Trademark, Copyright, and Patent and use the terms interchangeably.

Also, just because an attorney is paid $500 - $1000/hour doesn't mean he/she can automatically win a case that has no merit.

Is it possible to bully an uninformed defendant with a few letters from a high-powered attorney?

Absolutely.

On the specifics, I'm not of aware of whether Nash has entered into a licensing agreement with Fender or not.

However, if he has, I imagine that could undermine Fender's agreements with its current licensed vendors in that all are explicitly prohibited from building and selling new, branded instruments.

By the way, have you noticed that Warmoth no longer has their license agreement posted online?

Regardless, it's just the latest instance in the long history of authorized and unauthorized builders using these shapes on their instruments, resulting in the inevitability that the Trademarks are invalidated as generic.

https://en.wikipedia.org/wiki/Generic_trademark

Again, with Trademarks, you can't have it both ways.

They either identify the brand, or they don't.

In general, IP lawsuits are litigated "behind the scenes", so what agreements are made tend to stay in the private domain.

As for the decisions other builders have made, with regards to whether or not to use/violate other builder's Trademarks in their builds, I'll leave it to them to tell their own story:

https://konschaklaw.wordpress.com/2013/03/15/fender-musical-instruments-accuses-luthier-of-counterfeiting-guitars-2/

[BTL]

It's been a while since I went wandering around on the USPTO and PACER sites, but the Swade case has activity in 2015 under Fender Musical Instruments Corporation v. Swade, Tennessee Middle District Court, Case No. 3:13-cv-01075.

When I have some time, I'll see what I can find on the legal arguments, status, etc.

[dadagoboi]

Nash uses licensed Fender necks.  He buys them legally,  he can use them.  End of story, period.  Unless he puts a Fender logo on them, which he does NOT, and clearly states that on his site.  Or did last time I looked many years ago.

All my Fender head stocked necks are stamped 'licensed by Fender' on the bottom of the heel, which they are- by Allparts.  So are Mighty Mites.  What the recent Fender decision to sell their genuine replacement parts exclusively themselves will do to those agreements when they expire remains to be seen.

It can be argued what is or isn't the law but when a C&D arrives from someone with deep pockets and a high power law firm it's wise to heed it.

[BTL]

I did a lot of research on this topic when I started back in 2009, and have become pretty proficient in tracking down the relevant public records and case history as a result.

I also know a few folks in the industry who have been impacted by these issues, both directly and indirectly.

What always surprises me are the specific "facts" that end being asserted in these discussions as being beyond dispute.

[Dave W]

@Carlo

Yes, Nash uses licensed Allparts necks, but that doesn't mean it's the end of the story. It's my understanding that he worked out a licensing agreement with Fender that allows him to use the trademarked Fender headstock shape on a new product he is making for sale. I could be wrong, of course, but my information comes from an insider.

@Brad

If stating what I believe to be the facts is inflammatory, then I'm guilty as charged.

Trust me, I'm absolutely clear on the difference between trademarks, patents and copyright. I have specific past experience on trademark and licensing issues.

Regardless of complicated issues -- and they are complicated -- Fender's headstock shape trademarks haven't been invalidated, either by TTAB or a trial court.

And for the record, I believe whoever coined the term "intellectual property" should be shot, and if he's dead, he should be dug up, shot, and buried again. Trademarks, patents and copyrights are not property in any sense of the word, they're government granted monopolies.

[BTL]

So, on the topic of inflammatory, I should probably "walk back" my own comment first.

I should have said,"I BELIEVE Fender has lost the Trademark on its headstock shapes because of their licensing agreements that ultimately rendered the shapes as generic as a beer/soda can with no label."

Recognizing that subtle distinction, I will say that the comments "better get a new one" and "few are stupid enough to ignore a threat" are what I found inflammatory. 

Trademark rights are accrued and lost in the market, and I BELIEVE that is where Fender has lost the Trademark on its headstock shapes.

Whether my beliefs are ever adjudicated by the courts or if the registrations are invalidated will depend on how vigorously Fender chooses to defend what it has already lost/sold off/given away.