Why isn’t the Strat shape patented?

Discussion in 'Stratocaster Discussion Forum' started by dscottyg, Nov 14, 2021.

  1. Scott Baxendale

    Scott Baxendale Senior Stratmaster Gold Supporting Member

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    I thought that already happened when I mentioned Clapton? No one can take a simple joke anymore.
     
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  2. dscottyg

    dscottyg Strat-O-Master

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    So true. There’s always a couple people looking to get offended. A great example was when a guy jokingly told someone to sell his wife instead of selling his guitars, and someone else commented that he was bad for joking about selling people… Although come to think of it, maybe that was also a joke.
     
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  3. Deafsoundguy

    Deafsoundguy CERTIFIED HACK Silver Member

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    The Strat and Tele headstock, as well as a Coke bottle can be a design OR a trademark or BOTH! Sometimes things can be unique enough to where a design can function as beacon of brand name recognition. Leo had a TON of patents, but only certain ones stand out and make someone go “oh that’s a Strat” or “that’s a Tele”. Or from across the park you can tell someone is drinking a Coke because of the shape of the top of the bottle. A big star or big name athlete drinks a Coke and it’s free advertising for the drink company. And that’s when it’s so important to trademark those kind of identifiers and defend it. From a distance you can tell someone is playing a Fender or Gibson. Like I said utility patents just state how it’s built by wordage, and that wordage is gold, along with the patent drawings. The design patent gives the holder more of a hold on the look. The look is the identifier but the way it works can file for a utility patent if it does something unique no one else has. If that design makes it famous and easily identified then one files a for a trademark. Copyrights only protect (broad) works of art.

    This is a good thing to mention because if the builder of that guitar can prove that pickguard shape is unique, and everyone eventually wants one of those guitars and people immediately knows it’s a blankety blank guitar from the pickguard then it’s something the builder should think about going after. Leo Fender had 2 design patents on the pickguard/control plate D256803 and D280640 for that very reason (G&L guitars).

    Just because an item says “Pat Pending” it doesn’t mean that it got issued. So there’s a good chance that maybe Fender applied for a patent on that particular thing but didn’t get it. I have no idea if there’s legal repercussions to leaving it say “Patent Pending” after it gets disallowed, however I do know that if you ever put “Patent Pending” on an item for sale and it actually has not been filed you will never be able to file a patent application on it and you will be in big trouble by the USPTO…. But anyway in the big picture the iconic look of the Fender headstock got it a trademark which is way more important in the long run, which is why they can sue if they want to, to this day, and still do.

    I did a quick search and the way the USPTO works is that you can’t search by name (Leo Fender) prior to 1975. So that sucks because unless you know the patent number it makes searching for stuff REALLY suck because you have to look for things by classification and subclasses and it takes forever (ask me how I know :( ). But my quickie search got 18 patents by Leo after 1975. Who knows how many he had…. 8 were design patents the others utility patents. Who knows how many he had prior to 1975? I’ve never filed for a trademark so not too savvy in that area.
     
  4. dscottyg

    dscottyg Strat-O-Master

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    Interesting. But, my main point in the quote you responded to was about the side-debate over the words “patent” and “trademark.” Some people are saying that I was wrong to use the word “patent” because a patent applies to how something works (tremolo system) and a trademark applies to how something is designed to look (body shape), and I was pointing out that the word “patent” and not “trademark” seemed to apply to the contour body shape. Your info is good though. By the way, I learned at the Coca-Cola museum in Atlanta that When Coca-Cola first came out, it was in a plain old bottle. Competitors started selling look-a-like colas in the same plain old bottle, and Coca-Cola design the shape and patented it so people could tell which was the real Coca-Cola. That’s why I thought it was the perfect analogy to the Fender guitar shapes.
     
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  5. John C

    John C Most Honored Senior Member Silver Member

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    You're still confusing the two - and patents expire anyway so all the patents Leo had received while at Fender have long, long expired (17 to 20 years depending on patent type and when it was issued). So even if Leo did ever have a patent on a body shape it would have expired by the mid-70s.

    Trademarks are evergreen - as long as the company defends it they have it in perpetuity. I believe Coke had both a patent and a trademark on their bottle shape - so while any patent expired by 20 years after it was granted their trademark is still in effect today since they defend it.

    At any rate Fender never tried to trademark their body shapes - their philosophy was that the headstock shape was their "signature" and the body was something functional. That was until the early 2010s when FMIC/Fender decided to try to trademark their shapes. But since they had been in the "public domain" for so long a large group of builders/suppliers combined resources to dispute Fender's trademark application - that group included John Suhr, Tom Anderson, Hartley Peavey, the owners of Warmoth, the owners of WD, and several others. This group had enough evidence that Fender had never disputed any use of their body shapes for decades, so FMIC's trademark application was rejected.

    I'm not sure how aware you are of John Suhr's history so I'll provide a quick shorthand of it: John was the luthier/tech at Rudy's Music Stop in NYC in the 1970s/80s. Rudy's was a Schecter dealer - which at that time Schecter was a parts company that also assembled instruments, so their dealers would assemble instruments from Schecter parts and as long as the instrument was 100% Schecter parts/hardware they were considered to be "official Schecters" the same as ones assembled at the Schecter factory in Van Nuys. And of course John would also assemble instruments at Rudy's from other part sources. Schecter pivoted to selling complete instruments over parts in late 1984 (when Schecter moved from Van Nuys to Dallas TX) John and his boss, Rudy Pensa, decided to go into the building business under the name Pensa-Suhr.

    John and Rudy parted ways circa 1990/91 and John moved to California, going to work with Bob Bradshaw building amps under the Custom Audio Electronics name. Around 1993/94 John left Bradshaw and was hired as a Senior Master Builder in Fender's Custom Shop. And in 1996 John left Fender to found his current company.

    When John left he chatted with senior leaders at Fender, and he asked about the body shapes. The Fender leaders told him that as long as he stayed away from the headstock shape he could use the body shapes - Suhr guitars can be had with John's own dinky-type body or with the full-sized Strat body. Unfortunately John didn't get that in writing; if so he could have ended Fender's trademark attempt with minimal legal costs.
     
  6. Numbercruncher

    Numbercruncher Senior Stratmaster

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    Patents only last twenty years. For all I know they did patent it but after 20 years anyone can make a legal knock off. The name "Stratocaster" is still a Trademark and nobody can use it. That is why you see S-style guitars and T-style guitars.

    NC
     
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  7. Geet

    Geet Stratology Major Silver Member

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    I'm glad it's not, the competition is what keeps Fender making great strats. If Fender was the only brand making that body style they could charge whatever they want for it.
     
  8. WelhavenT

    WelhavenT Senior Stratmaster

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    Yeah, and I think most players know Fender is the origin (there is people here on Strattalk that doesn’t consider Mexico strats «real» Fenders).
     
  9. dscottyg

    dscottyg Strat-O-Master

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    That sounds legit to me. Now we all know. Thanks.
     
  10. SIngles Forever

    SIngles Forever Strat-O-Master

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    Because Leo fudged that up big time.
     
  11. John C

    John C Most Honored Senior Member Silver Member

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    Leo didn't mess that up; he did have patents on everything he could patent, and those patents were still in force when Leo sold Fender to CBS. So it was up to CBS to trademark (or I suppose it might be more proper to call it "trade dress" per the IP attorneys on the forum) the shapes after any applicable patents expired.
     
  12. dirocyn

    dirocyn Most Honored Senior Member

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    Adding a little more to this, there's a concept in trademark law called the Functionality Doctrine. If a feature is functional, it is not subject to trademark, but only to (temporary) patent protection. Useful inventions are subject to only temporary protection; once the patent expires the law permits free-market competition.


    The case law around the Functionality Doctrine has changed over time, I have no idea what it was during the 50s & 60s. The P-Bass was patented around 1951; it's possible that the patent itself blocked trademark registration at that time. Then of course the patents expired.

    And trademark registration for shapes may not have been a thing yet (the Coca Cola bottle trademark was not recognized until 1960).
     
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  13. SIngles Forever

    SIngles Forever Strat-O-Master

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    Why couldn't he patent the shape? How come Gibson could ?
     
  14. guitarface

    guitarface Most Honored Senior Member

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    I don’t think Gibson patented a body shape. They attempted to trademark body shape.
     
  15. Antstrat

    Antstrat Dr. Stratster

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    Never mind, not worth it.
     
  16. Antstrat

    Antstrat Dr. Stratster

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    Just in general:

    IP law (patent/trademark/copyright) has a lot of depth and no one size fits all answer.

    Just to cover the basics would be one longass thread.

    To get into detail would crash the server.
     
  17. dscottyg

    dscottyg Strat-O-Master

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    What do think would happen if Fender made a Strat with bird inlays instead of dots?
     
  18. Antstrat

    Antstrat Dr. Stratster

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    Fender wouldn’t for a variety of reasons, it will never happen.
     
  19. guitarface

    guitarface Most Honored Senior Member

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