Thomann Sues Fender on Behalf of "Everyone"

[Rackman]

You can have guitars that are shaped similar but not identical to the Stratocaster, that do the exact same 'function.' These companies are copying the exact shape.

There is no such thing as "shaperight". You have to assert a specific type of intellectual property from the list defined by law and there's none that clearly apply in the US. There are likely none that apply in Europe either which is why Fender sought a default judgement against a defendant they knew would not show up. The last thing they want to do is find themselves arguing points of law in an actual trial - that's how they lost in the US.

 

[jabps]

Adidas protection of the Stan Smith shoe is very similar. First produced in 1972, no vigorous legal defense in place for decades, copies made later on. Copy cat contended the design was utilitarian, court decided otherwise and Adidas was able to prevent people from copying the shoe.

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You can have guitars that are shaped similar but not identical to the Stratocaster, that do the exact same 'function.' These companies are copying the exact shape.

Except Fender lost this same lawsuit in 2009. They're gonna lose again in the EU courts. The problem will always stem from the fact that Leo didn't trademark the design. Gibson did.

Now maybe the courts overturn the 2009 ruling but that's highly doubtful. So as I said yesterday, drop the lawsuit, streamline the Strat line and build better guitars at a better price. Make that guy that wants to buy the Suhr because he knows it's going to be quality think twice by showing him you can offer the same quality, same detail at a cheaper price. And Fender already has the cache of the Fender brand. It can be done.

 

[Speeddemon]

Trade Dress - Only non-functional items can be trade dress, so again possibly headstock but not body shape or anything that has a function.

I'm pretty sure -having dealt myself once with this- that Trade Dress can cover more than just non-functional stuff*. But it can encompass more intangible stuff, yes...like the 'vibe' you're trying to convey with your product.
Basically if you (re)create something that really looks like a well established brand's style with the intent of fooling buyers that they're getting the 'better known' version, you could be sued for that.

Simple example: if you create a soda drink (brand), that's dark brown in color, you make the bottle's label bright red and there's a swirly white, classic font with a flowy ribbon around it, that could be seen as trade dress infringement, even though you may have come up with your own recipe (so no worries about potential, 72-years-too-late and wrongfully applied copyright claims there ) and are not using the name 'Coca' anywhere (=no trademark infringement). And since using a patent, means it expires after 20 years and the contents become public domain, these companies usually don't go that route and prefer to keep their recipe a secret. So (hardly) no worries about patents either. Which leaves trade dress infringement.

And given the long time *and* the fact their patents expired *and* the fact Fender actively promoted the existence of copies/clones since the 70's, *and* the fact that a Silver Sky for instance isn't fooling anyone that they're getting a (copied) Fender, making a case for trade dress infringement will be next to impossible too.

EDIT:
* The caveat in the definition is that non-functional means in this case something else than a passive part in itself...

Trade Dress Protection can be extended indefinitely.
Key Conditions for Ongoing Protection
To keep trade dress protection alive, it must continually meet two core criteria:
Source Identification: The visual appearance must signal to the consumer exactly who makes the product.
Non-functionality: The trade dress must be purely aesthetic or decorative. If the design feature becomes strictly necessary for the product to function, protection is lost.

Back to my soda example: the red label with white swirly font for a dark brown soda sure as hell signifies or suggests a source of manufacture.
And the logo style and the label itself are not necessary for a bottle to 'work', hence the non-functionality. So yeah, Coca co. definitely can protect their trade dress with this. Maybe Fender could've done the same... 72 years ago.... maybe not.

 

[The~Kid]

Fender has a right to the shape of the Strat in Europe due to European Laws as written in black and white...... Fender didn't make these laws. Europeans did......




And they will most likely and in all probable likelihood drive that right to the gates of hell and back to secure them...... And very well should IMO.


I don't think PRS would be affected even if that is what Fender may want or say Yamaha or Ibanez much as they don't make many or straight up 1:1 or close to 1:1 S-Types.... Even an AZ by Ibanez may be inspired by a Strat shape but it ain't a strait up strat 1:1 or close to 1:1 due to the layout and overall tweaks on the body and headstock...... Yamaha, Ibanez and a lot of other companies moved away from straight up copies in the 80s and made their own designs and even the PRS Silver Sky could be classified as a new design based on the tweaked body and headstock and layout of controls.


So it would just apply to 1:1 or close to 1:1 parts of the guitar on the headstock or body....... And yeah that would apply to just about any generic or even boutique 1:1 or close to 1:1 body shape or headstock shape of a strat.....


IMO this is the best route for Fender to win and well it's practical, it's common sense and it's Fenders design..... Pure and simple.



This is European Law afterall, made by European Lawmakers voted in by Europeans and Fender is simply following European Law

 

[The~Kid]

Except Fender lost this same lawsuit in 2009. They're gonna lose again in the EU courts. The problem will always stem from the fact that Leo didn't trademark the design. Gibson did.

Now maybe the courts overturn the 2009 ruling but that's highly doubtful. So as I said yesterday, drop the lawsuit, streamline the Strat line and build better guitars at a better price. Make that guy that wants to buy the Suhr because he knows it's going to be quality think twice by showing him you can offer the same quality, same detail at a cheaper price. And Fender already has the cache of the Fender brand. It can be done.

They won't lose......


Fender will come out on top.

 

[The~Kid]

He missed the point completely as usual. He keeps talking about European law. Lots of words, no substance

The reason Europe is even in this conversation is because Fender made a cunt move. They took a Chinese strat copy company to court in Germany. They used Germany because it was a friendly (sue happy) legal environment, and they knew the Chinese company would not show up to the court date. So they got an easy default judgement in their favor. Means jack shit. Now they want to use that 'win' to go after everyone who makes or sells an "S" shaped guitar. GTFOH!

And I'm a big Fender fan/supporter

It's like my analogy in that other thread. It would be similar to Ford suing Chevy because Chevy made a car with an engine in the front, 4 wheels, a steering wheel on the left, a roof, and was gasoline powered.

The one here with lots of words and no substance is you talking out of your ass, especially with these backwards and idiotic analogies

 

[Floyd Eye]

They won't lose......


Fender will come out on top.

Put your money where your mouth is kid.

 

[The~Kid]

Put your money where your mouth is kid.

Fender will win..... Or better put they won't lose..... Which is still a win....


And they will come out on top.



And this is likely to be handled in a settlement where companies would be forced to alter and make slight tweaks to the body shape of a generic 6 point S-Type 1:1 shapes.


There is a higher probability/likelihood of this happening than whatever other nonsense others are talking about.

 

[Rackman]

I'm pretty sure -having dealt myself once with this- that Trade Dress can cover more than just non-functional stuff*. But it can encompass more intangible stuff, yes...like the 'vibe' you're trying to convey with your product.
Basically if you (re)create something that really looks like a well established brand's style with the intent of fooling buyers that they're getting the 'better known' version, you could be sued for that.

That's correct, but it's also why guitar trade dress suits fall apart on appeal (if they get that far). Because customers buying a Suhr are NOT being fooled. They know exactly what they're buying and why they want it instead of a Fender. This isn't a case of a soda can painted to look vaguely like a Coke or whatever.

 

[Rackman]

Fender will win..... Or better put they won't lose..... Which is still a win....

Fender is VERY likely to lose. And if they win, they will still lose for three reasons. First because European legislatures will see what happened and decide to fuck them 10 ways to Sunday just for fun. Second, their opponent in Thomann is their #1 distributor in Europe. There is no plausible sequence of events where Fender's European sales get back even to the level they were when this all started any time soon. Third this will produce nothing but bad press and customer ill will. That cost of that is incalculable - witness Gibson's lack of sales with the under-40 crowd after their unsuccessful flirtation with litigation and that tone deaf "Play Authentic" video.

Fender's entire plan is the sort of thing you end up with when you use a law firm full of bottom 1/3 of the class lawyers.

 

[The~Kid]

Fender is VERY likely to lose. And if they win, they will still lose for three reasons. First because European legislatures will see what happened and decide to fuck them 10 ways to Sunday just for fun. Second, their opponent in Thomann is their #1 distributor in Europe. There is no plausible sequence of events where Fender's European sales get back even to the level they were when this all started any time soon. Third this will produce nothing but bad press and customer ill will. That cost of that is incalculable - witness Gibson's lack of sales with the under-40 crowd after their unsuccessful flirtation with litigation and that tone deaf "Play Authentic" video.

Fender's entire plan is the sort of thing you end up with when you use a law firm full of bottom 1/3 of the class lawyers.

Wrong.....


They are likely to not lose.....


When it comes to "main streets" opinion here and trial by mob none of that shit matters as much as you think or pretend to in reality..... The only place that matters is in forums and amongst nerds which isn't the majority of the market.


They are most likely to reach a settlement more or less and others making 1:1 generic copies will need to follow common sense and make tweaks on the Strat design/shape and follow European Law accordingly.


This is the most likely and probable scenario.


You heard it here first on Rig-Talk ahead of the "experts" and Soccer Moms/Dads

 

[Rackman]

Since it is Thomann suing them, not the other way around, the best outcome they can get is simply to be found not liable. Any settlement will involving giving some ground to Thomann relative to the current status quo.

If Fender wanted any sort of a positive outcome, they would have to file suit against a manufacturer or vender.

 

[The~Kid]

Since it is Thomann suing them, the best outcome they can get is simply to be found not liable. Any settlement will involving giving some ground to Thomann relative to the current status quo.

If Fender wanted any sort of a positive outcome, they would have to file suit against a manufacturer or vender.

No.....


As said they wouldn't have to win or lose necessarily..... They would reach a settlement most likely and probably to make tweaks on body shapes, headstocks etc etc on 1:1 generic clones/copies. And that would be a win for Fender.

In any case this scenario is most likely to occur and play out vs everything and anything else anyone has mentioned so far.


People are thinking with their heart and not their brain and well yeah Fender is coming out on top here given European Laws as written in black and white..... The law is the law and the law is on Fenders side *_*

 

[The~Kid]

Also let's not forget......


I'm pretty sure Fender may have a "Trump Card" up their sleeve.....


And if those in places in higher government would to take sides here..... I imagine they will take the side and use their power to help an American company and American interest over European interest whatever the case may be

 

[Rackman]

No.....


As said they wouldn't have to win or lose necessarily..... They would reach a settlement

Thomann is not going to agree to a settlement that's worse for them than the worst possible outcome of their lawsuit (which is a not-liable finding).

You really seem to have very little grasp of how this works.

 

[The~Kid]

Thomann is not going to agree to a settlement that's worse for them than the worst possible outcome of their lawsuit (which is a not-liable finding).

You really seem to have very little grasp of how this works.

They most likely are and that is the most probable scenario and you can take that to the bank......

Fender won't lose and they will come out on top.

 

[Rackman]

Also let's not forget......


I'm pretty sure Fender may have a "Trump Card" up their sleeve.....

Are you talking about the Trump who's literally involved in the manufacture of copy guitars? Or maybe some other Trump?

You're living in some sort of a fantasy it seems.

 

[The~Kid]

Are you talking about the Trump who's literally involved in the manufacture of copy guitars? Or maybe some other Trump?

You're living in some sort of a fantasy it seems.

All I'm saying is it's obvious that if at some point those in higher places in government were to pick sides to expend political power in favor of one side or another......


Fender has a "Trump Card" up their sleeve and most likely those in higher government are likely to favor an American company and American interest over foreign ones whatever the case may be......


Im not the one here letting emotions cloud my judgement.... And Fender ain't either unlike the argument from those who disagree with them and European Law



You ignore the obvious, facts and well let emotions cloud and decide your judgement vs common sense law and obvious facts. The one living in delusion and fantasy here is you my friend if you havent realized it yet......

 

[Speeddemon]

Are you talking about the Trump who's literally involved in the manufacture of copy guitars? Or maybe some other Trump?

You're living in some sort of a fantasy it seems.

Also, he thinks that this magic Trump may have some sway in how Europe would bend their European laws to do the bidding of a US manufacturer over a European company (=Thomann)?! Delulu is the word kids use, I believe.
But he'll just repeat 'Fender will win/come out on top' and 'they just abide the European laws' twenty more times, thinking that it will come true or something.

Fun fact, because of how a certain president behaves (transactional, changing course often, etc.) more and more European companies are cutting ties with certain US suppliers, especially in the tech sector. Pretty sure whatever 'Trump card' Fender may (and most likely may not) have, it's gonna be laughable for European courts and governments.

 

[japetus]