Eastwood RD Bass

[nofi]

good. now sx can put nice looking headstocks back on their basses.

[BTL]

 

[BTL]

So, I pulled the docs from the Kelton Swade lawsuit, and it was settled out of court.

It is very apparent from what is available on PACER that KS had been using Fender's legitimate/valid/active/defensible Trademarks in addition to the generic headstock shapes, and he has agreed to stop doing that.

That said, this is currently listed as new on Reverb:

[Dave W]

Brad, "few are stupid enough to ignore a threat" referred to Kelton Swade, who not only ignored the threat but was publicly defiant about it. No surprise that it was settled out of court.

As for the Swade on Reverb, I'd guess its dealer NOS (how can you tell with a relic anyway?). An individual with a pre-lawsuit Swade could still sell it openly. Unlike Rickenbacker, Fender wouldn't go after an individual seller's listing unless it was represented as a genuine Fender.

Kelton Swade (real name Joe Koegel) is infamous at TDPRI. Not just for his bullshit hype but for ripping people off.

[BTL]

From the records I have reviewed it appears as though KS was pretty brazen in his infringements.

Interestingly, some of the terms from the FINAL JUDGMENT AND PERMANENT INJUNCTION ON CONSENT are as follows:

[...] Defendants and any affiliated or related entities, agents, officers, employees, representatives,
successors, assigns, attorneys, and all other persons acting for, with, by, through, or under
authority from Defendants, or in concert or participation with Defendants and each of them:

a. shall dispose of the inventory identified in Exhibit D of the Parties’
Confidential Settlement Agreement pursuant to the terms of that
agreement;

b. shall completely cease all use whatsoever, directly or indirectly, of the
FENDER Marks, or any confusingly similar imitations thereof, in
connection with Defendants’ guitars or business, or other goods or
services, including without limitation in connection with the sale,
advertising or promotion of Defendants’ goods or services;

c. shall completely cease using, directly or indirectly, any trademark, service
mark, name, logo, design, source designation, or identifying characteristic
of any kind that is a copy, reproduction, colorable imitation, or simulation
of or confusingly similar to, or in any way similar to or likely to dilute the
distinctiveness of, the trademarks, service marks, or logos, designs, source
designations, or identifying characteristics of Fender, or is likely to cause
confusion, dilution, mistake, deception, or public misunderstanding that
Defendants’ guitars or business, or other goods or services are the guitars,
business, goods or services of Fender, or are sponsored, licensed,
endorsed, approved by, affiliated with, or in any way related to Fender or
its guitars;

d. except as provided for in paragraph 3 of this Consent Judgment, shell
remove all references to or depictions of the FENDER Marks, or any
confusingly similar imitations thereof, from any advertising or
promotional materials used in connection with their business, including
without limitation any website, social media or other online, electronic,
print or brick-and-mortar presence, published or unpublished, whether
existing in text, source code, photographic, videographic, audiographic,
hyperlink or other form; By way of example and not limitation, such
removal of references to the FENDER Marks may be accomplished by
means of the following: (a) elimination of text or titles referencing the
FENDER Marks (e.g., “Stratocaster,” “Telecaster,” “Strat,” “Tele,”
“Relic,” “T-Caster,” “S-Caster” (although references by Defendants to
“AVR-T” and “AVR-S” guitars are acceptable); (b) elimination or
modification of photographs depicting the FENDER Marks (e.g., cropping
photographs of Defendants’ guitars to remove imagery of head stock
designs owned by Fender); and (c) elimination or modification of audio or
video depicting or referencing the FENDER Marks (e.g., modifying audio
which utilizes references to the FENDER Marks in describing Kelton
Swade guitars or (as an alternative to the disclaimer provided in Paragraph
3 blurring or otherwise obscuring the imagery of head stocks of Kelton
Swade guitars to modify depictions of head stock designs owned by
Fender);

e. shall re-design the head stocks of his guitars using paddle necks or other
raw material, such that any new guitars, i.e., those not in the inventory
identified in Exhibit D of the Parties’ Confidential Settlement Agreement,
that are thereafter sold or offered for sale by Defendants after the entry of
this Consent Judgment have a unique head stock design that is neither
identical to nor will create a likelihood of confusion with any head stock
design owned by Fender; and

f. shall submit to this Court an affidavit or declaration certifying Defendants’
compliance with this paragraph within one week of the expiration of the
period.
The ninety-day phase-out period contemplated by this paragraph does not authorize Defendants
to undertake any new uses of the FENDER Marks during that period.

3. This Consent Judgment shall not prevent the Defendants from maintaining
previously-created videos in connection with the promotion or advertising of their business that
feature depictions of guitars crafted by Defendants before the entry of the Consent Judgment and
wherein such guitars bear infringing uses of head stock designs owned by Fender - - provided,
however, that in all such cases, Defendants shall include a specific disclaimer (provided below)
in the text immediately below the title or identifying language of each such video and on any
physical object, website page, social media or other online, electronic, print or brick-and-mortar
presence upon which the video is visible. The disclaimer shall read as follows: “Disclaimer:
The Kelton Swade guitar presented in this video features a head stock design owned by Fender
Musical Instruments Corporation (‘Fender®’). Such use was without the consent of Fender®,
and Kelton Swade no longer manufactures, distributes, advertises or sells guitars bearing that
head stock design. Kelton Swade is not now, nor has he ever been, a licensed supplier or seller
of Fender® guitars or other Fender® products or services. Neither Kelton Swade nor his
products or services are sponsored, licensed, endorsed, approved by, affiliated with, or in any
way related to Fender®.” [...]

[BTL]

My take is the substance of the case related to the fact that KS was selling vintage replicas, including logos, model names, etc.

Whether he continues to build guitars with the generic headstock shapes remains to be seen, and the terms of the settlement will not be made public.

So it goes.

[Dave W]

Thanks for looking that up. Very interesting language there. Even if there was no financial settlement, he sure got his arse handed to him. Shows you what happens when you get sued and don't have a leg to stand on.

Looks to me like he won't be building anything new with a Fender headstock shape.

[BTL]

That's how it looks to me, too.

It looks like they let him sell what he had in stock and also keep all of his videos up with a disclaimer.

It will be interesting to see what, if anything, he does from here. 

[Granny Gremlin]

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.

Yes, but that's not the legal standard.  Judges (and Gibson lawyers) aren't stupid, given the identical body shape the intent behind the identical name is clear and everyone knows it Arguing that it is a generic name and completely coincidental just isn't going to fly, sorry (further, I disagree that the combination is not distinct; only seperately are those words really generic, but this is a matter of opinion).

Even if they don't use the same model name on the production run, the fact that they use it here in the Kickstarter might be enough to show the intent.  Especially before they removed the Gibson logo (I hope nobody at Gibson documented the way that was before for Eastwood's sake; that was a pretty clear confession).

[BTL]

In fairness, I think Eastwood could have been more subtle in how they pursued this particular project, for sure.

Choosing NOT to pursue it may have been the best strategy of all.

[Dave W]

Yes, but that's not the legal standard.  Judges (and Gibson lawyers) aren't stupid, given the identical body shape the intent behind the identical name is clear and everyone knows it Arguing that it is a generic name and completely coincidental just isn't going to fly, sorry (further, I disagree that the combination is not distinct; only seperately are those words really generic, but this is a matter of opinion).

Even if they don't use the same model name on the production run, the fact that they use it here in the Kickstarter might be enough to show the intent.  Especially before they removed the Gibson logo (I hope nobody at Gibson documented the way that was before for Eastwood's sake; that was a pretty clear confession).

I agree that it's not coincidental. But if Gibson were to go after Eastwood, intent wouldn't matter. Gibson learned that lesson when they sued PRS and lost. The issues would be limited to whether the name and shape were infringing -- assuming that Gibson has ever trademarked either and would claim they're still valid.

[Dave W]

I notice that the videos on Kelton Swade's site do have the disclaimer he's required to use, but in tiny print, in a lighter black, so it's easy to miss. When you view them on YT, the disclaimer is there, and beneath that, "I have a new headstock that is even sexier than the one that I use to use so that there is no way anyone can be confused that these are my guitars and not someone else's!" 

[Granny Gremlin]

I agree that it's not coincidental. But if Gibson were to go after Eastwood, intent wouldn't matter. Gibson learned that lesson when they sued PRS and lost. The issues would be limited to whether the name and shape were infringing -- assuming that Gibson has ever trademarked either and would claim they're still valid.

PRS was not a name issue - this is (in addition to a body shape issue).  I was countering the assertion that "RD Artist" is not a unique enough name.  ... I would also argue that intent wasn't proven or as clear with PRS as it is here (it was with that other guy doing LP copies, forget the name, we discussed recently - but he wasn't using the name).

[Dave W]

PRS was not a name issue - this is (in addition to a body shape issue).  I was countering the assertion that "RD Artist" is not a unique enough name.  ... I would also argue that intent wasn't proven or as clear with PRS as it is here (it was with that other guy doing LP copies, forget the name, we discussed recently - but he wasn't using the name).

I agree with you that RDArtist would qualify as a unique name. My point was that intent doesn't determine infringement.

[BTL]

Rather than speculate, I did some research and here is what I found:

"Gibson RD" is registered:

https://tsdr.uspto.gov/documentviewer?caseId=sn85258179&docId=ORC20111011013213#docIndex=1&page=1

"RD" is abandoned:

https://tsdr.uspto.gov/documentviewer?caseId=sn77952630&docId=NOA20110406223111#docIndex=0&page=1

"RD Artist" is NOT registered.

All any of us can do is guess, but I'd imagine that the expense of filing for a Trademark Registration is not much different than that of sending a C&D letter.

If it's worth protecting, it's worth registering.

Neither the "RD Artist" name nor the body shape are registered.

It may be that Eastwood has given this project more thought than we might have imagined.